Filed 3/26/13 P. v. Lu CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

KEVIN LU, 

Defendant and Appellant. 

 H037846 

 (Santa Clara County 

 Super. Ct. No. C1113650) 

 After the court denied his Penal Code section 1538.5 motion to suppress evidence, 

Kevin Lu (appellant) entered no contest pleas to one felony count of possession of a 

controlled substance (Health & Saf. Code, § 11377, subd. (a), count one) and one count 

of possession of drug paraphernalia (Health & Saf. Code, § 11364, count two). 

 On January 13, 2012, the court suspended imposition of sentence and admitted 

appellant to probation pursuant to Proposition 36 (Pen. Code, § 1210 et seq.). The court 

imposed various fines and fees. Relevant to this appeal, the court did not calculate or 

award appellant any presentence custody credits. 

 Appellant filed a timely notice of appeal. On appeal, appellant challenges the 

denial of his suppression motion and contends that the court erred in failing to calculate 

his presentence custody credits. For reasons that follow we reverse the judgment. 
2 

Discussion 

Motion to Suppress 

Appellant contends that he was deprived of his rights under the Fourth and 

Fourteenth Amendments when he was subjected to an illegal search and seizure. 

 A defendant may move to suppress evidence obtained as the result of an 

unreasonable search. (Pen. Code, § 1538.5, subd. (a)(1).) Challenges to the admissibility 

of a search or seizure must be evaluated solely under the Fourth Amendment. (People v. 

Carter (2005) 36 Cal.4th 1114, 1141.) 

 "Police contacts with individuals may be placed into three broad categories 

ranging from the least to the most intrusive: consensual encounters that result in no 

restraint of liberty whatsoever; detentions, which are seizures of an individual that are 

strictly limited in duration, scope, and purpose; and formal arrests or comparable 

restraints on an individual's liberty. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 

805, 821 (Manuel G.).) 

 In reviewing the trial court's denial of a suppression motion, we defer to the trial 

court's factual findings if supported by substantial evidence, but exercise our independent 

judgment to determine whether, on the facts found, the search or seizure was reasonable 

under the Fourth Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830; People 

v. Glaser (1995) 11 Cal.4th 354, 362; People v. Weaver (2001) 26 Cal.4th 876, 924.) 

 The Fourth Amendment proscribes " '. . . unreasonable searches and 

seizures . . . .' " (United States. v. Mendenhall (1980) 446 U.S. 544, 550 (Mendenhall).) 

A consensual encounter with a police officer is neither unreasonable nor is it a seizure. 

(Id. at pp. 554–555.) As an example, a consensual encounter occurs when an officer 

approaches a person in public and asks how he or she is doing, or questions a person at a 

crime scene in a non-accusatory and routine manner to determine whether he or she may 

have information about the crime. (People v. Mendoza (2011) 52 Cal.4th 1056, 1081.) 
3 

As opposed to a consensual encounter, "a detention is a seizure within the meaning of the 

Fourth Amendment of the United States Constitution; a seizure occurs when an officer 

restrains a person's liberty by force or show of authority. [Citation.]" (Ibid.) 

 " 'Although there is no "bright-line" distinction between a consensual encounter 

and a detention . . . "the police can be said to have seized an individual 'only if, in view of 

all of the circumstances surrounding the incident, a reasonable person would have 

believed that he was not free to leave.' " ' [Citations.] ' "The test is necessarily imprecise, 

because it is designed to assess the coercive effect of police conduct, taken as a whole, 

rather than to focus on particular details of that conduct in isolation." ' [Citation.]" (Ford 

v. Superior Court (2001) 91 Cal.App.4th 112, 124.) "Circumstances establishing a 

seizure might include any of the following: the presence of several officers, an officer's 

display of a weapon, some physical touching of the person, or the use of language or of a 

tone of voice indicating that compliance with the officer's request might be compelled. 

[Citations.]" (Manuel G., supra, 16 Cal.4th at p. 821.) "In the absence of some such 

evidence, otherwise inoffensive contact between a member of the public and the police 

cannot, as a matter of law, amount to a seizure of that person." (Mendenhall, supra, 446 

U.S. at p. 555.) Nevertheless, an officer's "words and verbal tones are always 

considered," along with how an officer physically approaches the subject, or if the officer 

attempts to block the subject's path. (People v. Garry (2007) 156 Cal.App.4th 1100, 

1110–1112.) "The officer's uncommunicated state of mind and the individual citizen's 

subjective belief are irrelevant in assessing whether a seizure triggering Fourth 

Amendment scrutiny has occurred. [Citation.]" (Manuel G., supra, 16 Cal.4th at p. 821.) 

 To put it another way," [a]s long as a reasonable person would feel free to 

disregard the police and go about his or her business, the encounter is consensual and no 

reasonable suspicion is required on the part of the officer." (Manuel G., supra, 16 

Cal.4th at p. 821.) 
4 

 Although both "detentions" and "arrests" are seizures under the Fourth 

Amendment, distinctions are drawn between the two concepts since "the constitutional 

standard for permissible detentions 'is of lesser degree than that applicable to an arrest.' 

[Citation.]" (People v. Hester (2004) 119 Cal.App.4th 376, 386.) Thus, "[A]n officer 

who lacks probable cause to arrest can conduct a brief investigative detention when there 

is ' "some objective manifestation" that criminal activity is afoot and that the person to be 

stopped is engaged in that activity.' [Citations.] Because an investigative detention 

allows the police to ascertain whether suspicious conduct is criminal activity, such a 

detention 'must be temporary and last no longer than is necessary to effectuate the 

purpose of the stop.' [Citations.]" (People v. Celis (2004) 33 Cal.4th 667, 674.) Under 

such circumstances, in Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States 

Supreme Court created a limited exception that allows police officers to "stop and . . . 

frisk for weapons" when they have an "articulable suspicion [the] person has committed 

or is about to commit a crime." (Florida v. Royer (1983) 460 U.S. 491, 498.) It is well 

established that when an officer has reason to believe that his suspect is armed and 

dangerous he may conduct a superficial weapon search. (Adams v. Williams (1972) 407 

U.S. 143, 145.) 

 To justify a detention, that is, to make it a lawful detention, "the circumstances 

known or apparent to the officer must include specific and articulable facts [which would 

cause the officer] to suspect that (1) some activity relating to crime has taken place or is 

occurring or about to occur, and (2) the person [the officer] intends to stop or detain is 

involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.), 

superseded on other grounds by Cal. Const., art. I, § 28.) Of course, "[t]he corollary to 

this rule . . . is that an investigative stop or detention predicated on mere curiosity, rumor, 

or hunch is unlawful, even though the officer may be acting in complete good faith . . . ." 

(Ibid., citing Terry, supra, 392 U.S. at p. 22.) 
5 

 In order to address this issue, we set forth in detail the evidence adduced at the 

suppression hearing and the trial court's factual findings. 

 San Jose Police Officer Michael Panighetti testified that on the morning of 

August 15, 2011, at approximately 4:45 in the morning, he was on patrol in a marked 

police car; he was in full uniform, which included his standard weapons—service 

weapon, taser, pepper spray and baton. As he was driving he saw two people walking on 

the street; originally they had been standing in the shadow under a tree between Nakomas 

Street and Ridgebrook when he first saw them. As the people walked on, Officer 

Panighetti saw that one person was a man and the other a woman. The man was pushing 

a bicycle.1

 As the officer turned onto Ridgebrook and drew parallel with appellant and 

his companion, he asked them what they were doing. Appellant's companion told the 

officer that they were out for a walk; the officer asked if either of them was on probation 

or parole. Appellant's companion said she was on parole; at this time the officer was 

approximately 10 feet away from appellant and his companion talking out of the window 

of his patrol car. Officer Panighetti's patrol car was facing north in the southbound lane 

with the "nose" of the car centered toward the curb; he was approximately two to three 

feet from the curb and had the patrol car's headlights on. 

 After appellant's companion stated that she was on parole, Officer Panighetti got 

out of his patrol vehicle, shut the door but he left the patrol car headlights on. Officer 

Panighetti testified that he looked at appellant's female companion and motioned for her 

to come to him with his right arm by pointing his right arm forward and cupping his right 

hand and waving it back and forth; he said come here. At this time, appellant and his 

companion were standing about four feet apart with appellant slightly to the officer's 

right. According to Officer Panighetti he made eye contact with only appellant's female 

companion, but he did have defendant in his peripheral vision. Appellant's female 

 

1

 In court, Officer Panighetti identified appellant as the man with the bicycle. 
6 

companion immediately took approximately two steps toward the officer; at the same 

time appellant walked forward. Appellant was still holding his bicycle and was coming 

toward the officer at a quicker pace than his female companion. The female companion 

stopped and Officer Panighetti told her to stay still; he asked appellant to put down his 

bicycle.2

 Appellant put the bicycle on its kickstand and continued to walk toward the 

officer. Appellant walked right up to the officer. At the time, appellant was dressed in a 

sweater and jeans; in court the officer described the clothing as not tight, rather it was 

loose. Officer Panighetti grabbed one of appellant's hands and asked him to turn around; 

the officer conducted a pat search on appellant. In a pocket, the officer felt what his 

experience taught him was a methamphetamine pipe. After asking appellant twice if the 

object that he was feeling was a pipe, appellant admitted it was. Officer Panighetti 

handcuffed appellant and informed him he was being "detained" in relation to the 

methamphetamine pipe. At this point another officer arrived and took appellant to the 

rear of Officer Panighetti's patrol car.3

 

 In denying the suppression motion the court made the following findings. 

"[T]here was not sufficient evidence in the initial contact of [appellant] as well as with 

the woman that was on parole to justify a detention at that time. [¶] I [do] not think that 

that initial contact was a detention. I think it was a citizen contact and an officer doing 

 

2

 Specifically, Officer Panighetti testified "once she started coming towards me, she 

stopped, so I had her stay there and I had him come to me since he was now walking 

towards me and he was a little closer than she was." Conspicuous by its absence is any 

testimony by the officer that at this point in time he felt threatened by appellant's 

approach. 

3

 The prosecutor intended to call this officer to testify that in a search incident to 

arrest he found the pipe and a gram of methamphetamine. However, the court found that 

the officer's testimony was not relevant to the issue before the court and defense counsel 

said she would "accept the offer of proof with respect" to this officer, so long as the court 

would exclude the evidence in the event the court granted the suppression motion. The 

prosecutor was in full agreement with this procedure. Accordingly, the officer did not 

testify. We take this to mean that the parties were stipulating that the officer seized a 

pipe and the methamphetamine. 
7 

exactly what would be expected of them is to contact the person that's walking late at 

night and to see what they're doing, so there was nothing inappropriate raising conduct by 

the officer of a citizen con[tact] to a detention, nor was there any justification for a 

detention . . . ." The court determined that the detention occurred when "the officer 

directed [appellant] to put the bike down. That at that point there was specific commands 

in the direction and directed at [appellant]." The court found that Officer Panighetti was 

"credible that his questioning and motions were directed specifically at the woman that 

was on parole" and so when appellant "began to walk towards the officer -- even if 

[appellant] innocently interpreted the motion and the statements to the woman that he 

was with to include him, that doesn't change the officer's safety concerns that now late at 

night alone in extremely close proximity certainly in proximity to use a weapon . . . at 

four or five feet . . . . [¶] I think at that time the officer was justified in a brief pat-down 

search. Again two people there. One of them a parolee. There is no right to search a 

person with a parolee, but I do think it is a fair assumption that when a parolee is present, 

that causes a heightened sense of officer safety, and that as soon as he began to 

approach -- even if he was misinterpreting the officer's directions to the woman on 

parole, that that justified the officer in a brief detention to pat down for weapons . . . ." 

The court concluded, "I don't think there was reasonable articulable suspicion of criminal 

activity in the initial contact really at any time, but there was a legitimate set of concerns 

once [appellant] approached the officer in close proximity, and that was a valid basis for 

the detention." Thus, as can be seen, the court justified the detention on officer safety 

grounds. 

 Although we believe that it is a very close case as to whether appellant was 

detained when initially stopped by Officer Panighetti (see People v. Garry, supra, 156 

Cal.App.4th at p. 1111 [after only five to eight seconds of observing the defendant from 

his marked patrol car, the officer bathed defendant in light, got out of his car and armed 

and in uniform briskly walked 35 feet and directly questioned defendant about his legal 
8 

status]), we agree with the trial court that appellant was detained the moment the officer 

told him to put down his bicycle and appellant complied. At that point in time, a 

reasonable person would not have felt free to leave because to do so would have entailed 

leaving behind his or her personal property.4

 

Terry, supra, 392 U.S. 1, established the standards for search and seizure that we 

must follow here. "At issue in [Terry] was the constitutionality of a police procedure 

commonly known as a 'frisk' or 'pat-down' in which police officers conducting an 

investigation search a suspect for concealed weapons. Describing the procedure as 'a 

serious intrusion upon the sanctity of the person,' the United States Supreme Court 

nevertheless concluded that it was not 'unreasonable' if the police officer could 'point to 

specific and articulable facts which, taken together with rational inferences from those 

facts,' would warrant the intrusion. [Citation] Because the 'intrusion upon the sanctity of 

the person' consists not only of the patdown itself but also of the temporary detention 

during which the patdown occurs, to justify frisking or patting down a person . . . 'the 

officer must first have constitutional grounds to insist on an encounter, to make a forcible

stop.' [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 229.) 

 To put it another way, in order to lawfully detain an individual, even temporarily, 

an officer must have a reasonable, articulable suspicion that the person has committed or 

is about to commit a crime. (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) The 

temporary detention of a person for the purpose of investigating possible criminal 

activity, because it is less intrusive than an arrest, must be based on "some objective 

manifestation" that criminal activity is afoot and that the person to be stopped is engaged 

in that activity. (United States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2.) Inchoate 

concerns for officer safety may justify certain minimal intrusions. However, a 

 

4

 Respondent agrees that to the extent that appellant complied with Officer 

Panighetti's direction to put down his bicycle, the court was correct in finding a detention 

at this point. 
9 

reasonable, articulable suspicion of criminal activity is still needed to justify the initial 

detention. (Terry, supra, 392 U.S. at p. 21; Tony C., supra, 21 Cal.3d at p. 893.) 

Conspicuous by its absence in this case is any evidence that appellant was engaged in any 

criminal activity at any time during his encounter with Officer Panighetti. 

 Respondent contends that the companion of a person subject to search may, under 

certain circumstances be detained while officers conduct a search of that person. 

 In People v. Samples (1996) 48 Cal.App.4th 1197 (Samples), four officers 

executing a warrant to search an apartment and its two residents were told the two 

subjects would be returning in a particular car. (Id. at p. 1200.) When that car arrived 

outside the apartment, the officers asked the defendant, who was driving, to get out so 

that the two suspects could get out of the backseat; the officers pat searched him when he 

did so. (Ibid.) The search was held justified because the four police officers were 

dealing, at night, with five occupants of a car, two of whom were subjects of a search 

warrant. The officers were " 'engaged in an undertaking fraught with the potential for 

sudden violence' " and it would be " 'utter folly' to require them to wait to search so as to 

protect themselves until there is 'an overt act of hostility.' " (Id. at p. 1210.) 

 The circumstances in Samples were significantly different, and the reasoning of 

that case cannot be extended to authorize the search here. As noted, in Samples, police 

officers had a warrant, based on probable cause to search two individuals suspected of 

possessing methamphetamine for sale. (Samples, supra, 48 Cal.App.4th. at p. 1200.) At 

9:40 at night, the officers stopped a car in which these suspects and three other 

individuals were riding. (Id. at pp. 1200, 1210.) Considering all of these circumstances--

the time of night, the fact that officers were dealing with five people exiting from a car, 

and the apparent relationship of the car's other occupants to the two passengers who were 

the subject of drug-related warrants--the court concluded the police were justified in 

conducting pat searches of the occupants to ensure officer safety. (Id. at pp. 1210-1212.) 

However, in this case appellant's companion was not the subject of a warrant, and she 
10 

was not suspected of being a drug dealer or at the time when she was stopped being 

involved in criminal activity of any kind. Nor were the other officer safety concerns in 

Samples present here. In Samples, the officers were dealing with suspected drug dealers.5

 

Further, in contrast to appellant, the defendant in Samples "was more than just a casual, 

sidewalk companion of a person who was the subject of a warrant . . . ." (Id. at p. 1212.) 

Appellant was simply walking on the street with a companion while pushing a bicycle in 

the early hours of the morning. A time, 5 a.m., when it is reasonable to believe they 

could have been walking to or home from work. As the trial court found, there were no 

suspicious circumstances attached to their presence on the street at that time in the 

morning. Further, Officer Panighetti did not testify that he felt threatened at any time, 

even when appellant was walking toward him. 

 " 'In evaluating the validity of an officer's investigative or protective conduct 

under Terry, the "touchstone of our analysis . . . is always 'the reasonableness in all the 

circumstances of the particular governmental invasion of a citizen's personal security.' " ' 

[Citation.]" (People v. Thurman (1989) 209 Cal.App.3d 817, 824; see also People v. 

Rivera (1992) 8 Cal.App.4th 1000, 1006.) "Central to the Terry court's understanding of 

reasonableness is the requirement of 'specificity in the information upon which police 

action is predicated . . . .' [Citation.] Thus, 'in justifying the particular intrusion the 

police officer must be able to point to specific and articulable facts which, taken together 

with rational inferences from those facts, reasonably warrant that intrusion.' [Citation.]" 

(People v. Glaser, supra, 11 Cal.4th at p. 363.) An officer need not be certain that the 

individual is armed; the fundamental test is "whether a reasonably prudent man in the 

 

5

 The unfortunate association between drug dealers and possession of weapons has 

often been recognized. (See U.S. v. Sakyi (4th Cir.1998) 160 F.3d 164, 169; People v. 

Glaser, supra, 11 Cal.4th 354, 367-368; People v. Collier (2008) 166 Cal.App.4th 1374, 

1378; People v. Limon (1993) 17 Cal.App.4th 524, 535 [noting it was not unreasonable 

for officer to assume a suspected drug dealer might be armed].) "Firearms are, of course, 

one of the ' "tools of the trade" ' of the narcotics business. [Citation.]" (People v. 

Ledesma (2003) 106 Cal.App.4th 857, 865.) 
11 

circumstances would be warranted in the belief that his safety or that of others was in 

danger." (Terry, supra, 392 U.S. at p. 27; see also United States v. Garcia (9th Cir.1990) 

909 F.2d 389, 391; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230; People v. 

Allen (1975) 50 Cal.App.3d 896, 902.) 

 " 'The Terry case created an exception to the requirement of probable cause, an 

exception whose "narrow scope" [the United States Supreme Court] "has been careful to 

maintain." Under that doctrine a law enforcement officer, for his own protection and 

safety, may conduct a patdown to find weapons that he reasonably believes or suspects 

are then in the possession of the person he has accosted. [Citation.] Nothing in Terry can 

be understood to allow a generalized "cursory search for weapons" or, indeed, any search 

whatever for anything but weapons. The "narrow scope" of the Terry exception does not 

permit a frisk for weapons on less than reasonable belief or suspicion directed at the 

person to be frisked . . . .' " (People v. Sandoval (2008) 163 Cal.App.4th 205, 212.) 

 Officer Panighetti did not testify he thought appellant was armed and dangerous. 

To the contrary, Officer Panighetti testified that he did not see any bulges or anything in 

appellant's clothing before he pat searched him, which would have given him a 

reasonable belief that appellant was armed. Rather, this was a generalized cursory search 

for weapons, which under Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra) cannot be 

sanctioned.6

 

 In the present case, the pat down search of appellant was unlawful under Terry and 

Ybarra. The touchstone for justifying a pat down search under Terry and Ybarra is that 

the officer must first have a reasonable belief or suspicion that the suspect is engaged in 

criminal activity and also a reasonable belief or suspicion that he is armed in order to 

 

6

 In Ybarra, a pat search was conducted on nine to 13 patrons of a public tavern. 

The Supreme Court regarded the search as a "generalized 'cursory search for weapons' " 

(Ybarra, supra, 444 U.S. at pp. 93-94); a search that the United States Supreme Court 

would not sanction. (Id. at p. 96.) 
12 

conduct a pat search. Here, there was no evidence presented that Officer Panighetti had 

any such reasonable belief or suspicion; in short his testimony at the suppression hearing 

was bereft of any suggestion that he reasonably believed appellant was engaged in 

criminal activity or that he reasonably believed that appellant was in fact armed. 

 In reaching our conclusions in this case, we are mindful that "[t]he judiciary 

should not lightly second-guess a police officer's decision to perform a patdown search 

for officer safety. The lives and safety of police officers weigh heavily in the balance of 

competing Fourth Amendment considerations. [Citations.] However, the Terry rule has 

been extant for over [forty years] and is well known to the police. [Citation.] It is alive 

and well. [Citation.]" (People v. Dickey (1994) 21 Cal.App.4th 952, 957.) 

 We conclude that the suppression motion was erroneously denied. The error is by 

its nature prejudicial where, as here, appellant pleaded no contest after the erroneous 

denial of a suppression motion. (People v. Ruggles (1985) 39 Cal.3d 1, 13.) 

Accordingly, appellant must be allowed, if he so chooses, to withdraw his no contest 

pleas. Since we must reverse appellant's conviction, it is not necessary to address 

appellant's other issue regarding the trial court's failure to calculate his presentence 

custody credits. 
13 

Disposition 

 The order granting probation is reversed. On remand, the trial court shall enter an 

order granting appellant's motion to suppress. The trial court is directed to permit 

appellant to withdraw his guilty plea. 

 _________________________________ 

 ELIA, J. 

WE CONCUR: 

 _____________________________ 

 RUSHING, P. J. 

 _____________________________ 

 PREMO, J.