1. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. Argument
A. The Court should grant the Motion to Suppress Evidence for Kippen
because the facts of his case do not meet the rules for reasonable and
objective detention.
As affirmed in People v. Lloyd, “The reasonable suspicion necessary to justify a
detention is measured solely by an objective standard. . .whether a Fourth Amendment violation
has occurred turns on an objective assessment of the officer’s actions in light of the facts and
circumstances.” 4 Cal. App. 4th 728 (Ct. App. 1992). Furthermore, according to People v.
Wells, “to be reasonable, the officer's suspicion must be supported by some specific, articulable
facts that are reasonably consistent with criminal activity.” 38 Cal. 4th 1078 (2006). These rules
set the standard very clearly for the determination of legal detention. The facts of People v.
Kippen do not meet this standard for a variety of reasons as will be demonstrated, consequently
his detainment was not justified.
Lloyd did not meet the standard for legal detention because the detaining officers found
the defendant standing next to a business at three o’clock in the morning where a silent alarm
was triggered. 4 Cal. App. 4th at 728. These factors gave officers reasonable suspicion to detain
Lloyd. In Wells, officers detained the defendant because the vehicle she was driving met the
description of an anonymous tip reporting the vehicle swerving. 38 Cal. 4th at 1080. The tip was
specific regarding the type of vehicle, the estimated year of manufacture, location and time.
These details in their entirety are objective and articulable reasons that gave the officers legal
authority to make the stop.
2. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In Kippen, the reason the officer made the stop was the lack of a shoulder harness on his
1979 vehicle that was not required to have one, which he later identified as a Ford Mustang. This
sole reason for the stop does not constitute legitimate cause for suspicion of a crime and is
indicative of the officer’s subjective inclination to make the stop. Nor does the officer’s
statement that Kippen displayed “objective signs of intoxication” meet the legal standards as set
forth in the aforementioned cases. The officer’s opinion of objectivity does not replace
articulable facts, of which he did not supply. He in fact did not describe a single detail of any of
these “signs” when he approached Kippen.
Both reasonable suspicion and probable cause fall under the jurisprudence of the Fourth
Amendment, which protects American citizens from unreasonable stops, searches and seizures.
U.S. Const. amend. IV. This fundamental standard of protection is also illustrated in People v.
Superior Court of Yolo County, 3 Cal. 3d 807 (1970). In this case, officers pulled over a vehicle
for speeding and noticed a “furtive gesture” after making the stop. Id. at 810. The officers
interpreted this gesture as a sign the defendants were hiding contraband and proceeded to open
the car door and look inside, finding the seeds and stems of marijuana. The officers then
searched the vehicle and made arrests after finding pot under the seats. Id. at 811. The California
Supreme Court upheld the trial court’s motion to suppress evidence, reasoning that “guilty
significance has been claimed for gestures or surrounding circumstances that were equally or
more likely to be wholly innocent.” Id. at 812.
Our case is very similar in that the officer who pulled Kippen over stated he saw him
buckle his seat belt as he was approaching the vehicle. The action of buckling is akin to a furtive
gesture and cannot be used by the officer as objective evidence to detain Mr. Kippen.
Furthermore, the court reasons in People v. S.C. of Yolo County that “every motorist knows that
3. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the approaching police officer will in all likelihood ask to see his driver's license and registration.
The observed movement, therefore, might well be nothing more than the driver's act of reaching
for his wallet so as to have his license ready for inspection.” Id. at 812. This statement
emphasizes the high standard of objectivity necessary to create reasonable suspicion and how
furtive gestures do not meet that standard. In our case, Kippen was just as or even more likely to
be making a nervous movement or reaching for his wallet to show the officer his identification
than he was buckling his belt.
Re Tony C. provides additional illustration of the standard for objective reasonableness
necessary for an officer to make a detention. 21 Cal. 3d 888 (1978). The facts of the case saw
two African-American teenagers walking down a sidewalk during the middle of the day in a high
crime area. Id. The officer who detained them did so because of previously reported burglaries in
the area as well as suspecting the youths of truancy. Id. at 889. Upon detention, one of the youths
was found to have stolen property from a recent burglary and arrested. Id. The ruling of the
California appellate court was to suppress the evidence, which the Supreme Court affirmed, as it
was the fruit of an illegal stop. Id. at 891. The stop was illegal because “there is nothing
suspicious in the sight of two school children walking along the sidewalk during the noon hour,”
despite the burglary reports and potential for truancy. Id. This case further demonstrates how
strict the standard of reasonableness is in determining if a detention is legally justified. In our
case, there was nothing reasonable about Kippen getting pulled over for driving a car that was
patently old and therefore not subject to the shoulder harness rule, especially considering there
were no other indications of criminal behavior.
The Court in Re Tony C. asserts “The facts must be such as would cause any reasonable
police officer in a like position, drawing when appropriate on his training and experience to
4. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
suspect the same criminal activity and the same involvement by the person in question.” Id.
Kippen was driving a car that was 37 years old, which by rational definition qualifies it as
markedly antiquated. So much so that a reasonable police officer should have not thought it
justified to pull over. In Kodani v. Snyder, the court states “It may well be that some cars are of
such antique vintage that an officer would not reasonably expect to find a shoulder harness in
them. In such an uncommon situation, the absence from sight of a shoulder harness would not
reasonably imply a violation of the mandatory seat belt law and could not support a lawful stop
of the vehicle.” 75 Cal. App 4th 471 (Ct. App. 1999). However, that’s exactly what the officer in
our case did. It wasn’t reasonable for him to do so because in his line of work, officers are
expected to easily identify cars based on the objective descriptions given of them, just as the
officers did in People v. Wells, 38 Cal. 4th at 1080.
The totality of the evidence against Kippen amounts to a man properly driving through an
intersection in a 1979 Ford not legally required to have a shoulder harness, the officer stating he
witnessed Kippen making a gesture to buckle his lap belt, and the officer witnessing signs of
intoxication of which he did not articulate. Taken together, a justified detention of Kippen cannot
be substantiated. The proof is significantly weaker than in the preponderance of cases where the
courts of appeal ruled to suppress evidence based on the illegal detention of the defendants.
B. The Court should grant Motion to Suppress Evidence for Kippen
because the facts of his case do not warrant searching for contraband in the
context of conducting a Terry frisk for a weapons search.
The rule justifying this conclusion is that “the requirements for a weapons search are not
5. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as strict if the officer has probable cause to arrest, but. . . even a search incident to such an arrest
must remain reasonable in scope." Yolo, 3 Cal. 3d at 829. The officer’s pat down of Kippen did
not stay within the bounds of reasonability as he could not unequivocally determine that the
plastic bag he felt was in fact an illicit substance. An authoritative explanation of reasonable
scope is found in Terry v. Ohio: “In determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in
light of his experience. 392 U.S. 1 909 (1968).
A hunch was exactly what the arresting officer in Kippen was acting on because there
was no way for him to determine the contents of a bag by touch alone, no way for him to make a
reasonable inference. Indeed, the consistency of powdery substances can be one indicator of their
character, but that would require intrusive rubbing of the substance with the officer’s fingers,
which is beyond the scope of a weapons pat down. Therefore, the officer infringed upon
Kippen’s Forth Amendment rights, which protect against unreasonable search and seizure.
The Supreme Court has adjudicated additionally in this area, which further strengthens
the argument for suppression. In Minn. v. Dickerson, the court argues “if the protective search
goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under
Terry and its fruits will be suppressed.” 508 U.S. 366 (1993). The officer in Kippen indeed went
beyond a mere weapons search. In Arizona v. Hicks, 480 U.S. 321 (1987), the court found that
what officers perceived as contraband, which in this case was stereo equipment, did not
ultimately qualify as admissible under the plain view doctrine, even though subsequent
investigation revealed it to be stolen. This was due to the officers not being able to definitively
determine at the time of arrest that the equipment was in fact stolen, but only later upon
6. 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inspecting the serial numbers. Id. at 323. If this evidence was suppressed, a bag with a powdery
substance in Kippen’s pocket must be as well as it was evidence not in plain view and not
demonstrably illegal.
Furthermore, the facts in Minn v. Dickerson are directly relevant to Kippen. Officers in
this case observed the defendant walking out of a known drug house, and when he noticed the
officers, abruptly changed direction and headed toward an alley. Id. at 366. The officers detained
the individual and conducted a Terry frisk, during which the officer noticed a “lump” in the
defendant’s pocket. Id. The Court ruled “because this further search of the respondent's pocket
was constitutionally invalid, the seizure of the cocaine that followed is likewise
unconstitutional.” Id. at 368. The seizure was invalid because “the incriminating character of the
object was not immediately apparent to the officer.” Id.
This scenario is exactly analogous to Kippen. The officer conducted a Terry frisk and
found what he thought to be the equivalent of a lump of drugs. It was determined that the
officer’s assumed the substance was contraband in Minn. v. Dickerson, just like the officer did in
Kippen, without having objective proof. Id at 370. Therefore, the evidence must be suppressed in
our case as well due to the unconstitutional manner in which it was seized.
