WASHINGTON — A person stopped on the street by police, questioned and ordered to produce identification has not been seized but is merely engaged in a "consensual encounter," according to an Orange County ruling left standing Tuesday by the U.S. Supreme Court.
The high court dismissed without comment or dissent an appeal of a ruling by the California Court of Appeal in Orange County upholding the October, 1986, arrest for alleged cocaine possession of Servando Lopez on a Santa Ana street.
Many defense lawyers and even some judges contend that the Court of Appeal ruling, which has a binding effect throughout the state, illustrates a whittling away of the Fourth Amendment's ban on unreasonable searches and seizures in response to the war on drugs.
"It's the end of the line for this one," said Orange County Public Defender Ronald E. Klar. "It is a difficult decision to swallow and kind of a scary prospect for some individuals."
"It will allow police departments to go further in detaining people without calling it detention," said Klar, who defended Lopez. The attorney said the meaning of a "consensual encounter" is more confused now.
Lopez--who faces drug possession charges--was not available for comment.
In an unusual twist, the Orange County appellate judge who wrote the opinion upholding Lopez's arrest said he disagreed with his own decision but felt compelled to rule as he did because of recent Supreme Court precedents.
In the 1960s, the Supreme Court said police can briefly question someone on the street if they have reason to believe that the person is engaged in wrongdoing. But, the court added, officers cannot detain or arrest the suspect without firm evidence, or probable cause, that he has committed a crime.
But in recent years, several court rulings in drug and immigration cases have undercut the doctrine, suggesting instead that the police may stop, detain and question a person even if they have no evidence of illegal activity.
On Oct. 22, 1986, two Santa Ana officers on midday patrol spotted Lopez sitting on the hood of a car in a downtown area known for drug trafficking. Stopping their patrol car, they walked up to the man and began questioning him.
Lopez said he was waiting for a few friends to play pool. Dissatisfied with that and other answers to their questions, the officers asked to see his identification. When Lopez pulled out his wallet, the officers found a small amount of cocaine inside and arrested him.
In 1988, Orange County Superior Court Judge John J. Ryan threw out the evidence against Lopez, ruling that he had been unconstitutionally "seized" by officers who had no reason to believe that he had done anything wrong.
But last July, a three-judge appeals panel in Santa Ana overturned that ruling and reinstated charges against Lopez.
Their decision relied on Supreme Court rulings in 1983, 1984 and 1988 that said police or immigration officers can question a presumably innocent person as long as the person understands that he is "free to leave" at any time. These rulings "compel the conclusion that no seizure occurred here," Court of Appeal Associate Justice Thomas F. Crosby Jr. said in the ruling.
Crosby conceded, however, that the trial judge had been correct from a practical standpoint, if not under the law.
"In the real world, this defendant (Lopez) could not possibly have felt himself free to walk away when his identification was requested, and it is almost laughable to think the officers would have let him do so," Crosby wrote.
"Nevertheless," he continued, "a solid majority of the U.S. Supreme Court is of the view that ordinary citizens and even undocumented aliens confronted by immigration officials would be aware that they could merely saunter off when asked to identify themselves."
Klar appealed the Lopez decision to the California Supreme Court, which rejected it in August. In December, he filed an appeal with the U.S. Supreme Court in Lopez vs. California, 89-959.
"The message sent out by the California Court of Appeal," Klar said, "is that, without arousing any reasonable suspicion whatsoever, a law-abiding citizen may be approached by armed police officers in a public place, surrounded so that his path is obstructed, asked accusatory questions, continued to be questioned after he has chosen not to respond and requested (to) produce identification, all without the protection of the Fourth Amendment."
"They say you don't have to talk to the officers, just walk away" Klar said. "Not very many people walk away when an officer is talking to them. You could be charged with running away."
Times staff writer George Frank in Orange County contributed to this story.