Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06WF3143, Richard J. Beacom and Daniel T. Brice, Judges. (Retired judges of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant Charles William Dignam pleaded guilty to misdemeanor possession of a controlled substance and misdemeanor possession of controlled substance paraphernalia after the trial court denied (1) his motion to dismiss under Penal Code section 995, challenging the denial of his motion to suppress at the preliminary hearing, and (2) his renewed motion to suppress under Penal Code section 1538.5.
Defendant contends the trial court erred by failing to suppress evidence found in defendant’s possession because that evidence was obtained by police through an unjustified detention. The Attorney General argues the record shows the police-initiated contact at issue constituted a consensual encounter.
We reverse and remand the matter to the trial court. A police-initiated contact is consensual “[a]s long as a reasonable person would feel free to disregard the police and go about his or her business.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Here, the record shows an officer, who was responding to a report of a suspicious vehicle, saw defendant’s vehicle legally parked and facing east on a two-lane residential street in Huntington Beach. The officer, who had been travelling westbound on that same street, diagonally parked his car 15 to 20 feet in front of defendant’s car in a manner that blocked westbound traffic. He trained the patrol car’s overhead takedown lights and spotlight on the front driver’s side window of defendant’s car where defendant was seated.
The record further shows a second officer arrived on the scene and parked his patrol car next to the first officer’s car, blocking eastbound traffic. He also activated his patrol car’s overhead takedown lights and spotlight. After the officers approached defendant, one of them asked defendant what he was doing, whether he had identification, and whether he would step out of the car and onto the curb. Under the circumstances of this case, we conclude defendant was detained by the officers because a reasonable person in his position would not have felt free to disregard the officers and go about his business.
As the record does not show the officers’ detention of defendant was supported by a reasonable suspicion, an issue uncontested by the Attorney General, the trial court erred by denying defendant’s motion to suppress.
The following facts are taken from the evidence presented at the preliminary hearing held in February 2007. The court conducted the preliminary hearing and the hearing on defendant’s motion to suppress at the same time.
At approximately 8:45 p.m. on October 18, 2006, Officer Charles Remington of the Huntington Beach Police Department drove his marked police car westbound on Geneva Avenue in response to a report of the presence of a suspicious vehicle. Remington came upon an older model white Mercedes Benz which was legally parked on the south side of Geneva Avenue and was facing east. Remington testified he parked his patrol car at a diagonal facing the front end of the Mercedes Benz in a manner that blocked the westbound lane of Geneva Avenue, but did not block the eastbound lane. He testified the front of his patrol car was approximately 15 to 20 feet away from the front of the Mercedes Benz and there was sufficient room for the Mercedes Benz to pull forward and leave the area. He stated that if traffic were to pass his parked patrol car, “they’d go between [the] vehicles.”
Geneva Avenue is “your regular two lane” residential street.
Remington activated the patrol car’s rear-facing yellow flashing lights on the overhead light bar to alert approaching traffic that the patrol car was stopped in the middle of the street; he did not activate the patrol car’s red and blue flashing lights. Remington also activated the patrol car’s overhead white “take-down” lights and spotlight, and trained them on the front driver’s side window of the Mercedes Benz.
Remington approached the driver’s side of the Mercedes Benz and saw defendant inside the car. Remington identified himself and asked defendant why he was in the area. Remington testified defendant stated he was “basically homeless and sleeping out of his vehicle.” Remington testified that during this conversation, Officer Sean McCollom arrived as a backup officer for safety reasons. Remington could not recall where McCollom parked his patrol car or whether McCollom had blocked the area that would have prevented defendant from driving away.
McCollom testified he and Remington arrived on the scene at the same time. He stated he parked “[r]ight next to” Remington’s patrol car and he activated his patrol car’s white takedown lights and spotlight. He testified that he blocked eastbound traffic, but that defendant could have driven away by turning down an alley located directly in front of his car.
Remington testified he asked defendant “[i]f he’d mind stepping out of the car so [he] could speak with him on the side of the road out of traffic.” He further testified he asked defendant to go to a particular area; he did not direct him to do so. He also asked defendant for identification; defendant did not immediately produce any identification. Remington testified he asked defendant “[i]f [he] could pat him down for safety reasons”; defendant said, “[i]t would be okay.” Remington said defendant “took a stance, basically, placing his feet apart and his hands behind his back.”
Using an open hand, Remington patted down defendant, using his standard procedure. When he patted the outside of defendant’s left front pants pocket, he felt a cylindrical object with a bulbous end. Remington asked defendant if he could remove the object from the pocket; defendant agreed. Remington reached into the pocket and removed a black, nylon-type, mesh pouch containing a “dirty narcotic meth pipe” and a small, clear plastic bag with a usable quantity of methamphetamine. Remington placed defendant under arrest.
PROCEDURAL BACKGROUND
A felony complaint was filed against defendant, alleging felony possession of methamphetamine and misdemeanor possession of controlled substance paraphernalia. Defendant filed a motion to suppress the evidence seized from him on the ground, inter alia, there was insufficient justification for the officers to detain him the evening of October 18, 2006.
The parties agreed the magistrate would conduct the hearing on defendant’s motion to suppress and the preliminary hearing at the same time. Following argument, the magistrate denied defendant’s motion to suppress and held defendant to answer.
Defendant was thereafter charged in an information with felony possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) and misdemeanor possession of controlled substance paraphernalia in violation of section 11364.
Defendant filed a renewed motion to suppress under Penal Code section 1538.5, subdivision (i), based upon the preliminary hearing transcript. He also filed a motion to dismiss the information under section 995 on the ground he had not been “lawfully committed by the magistrate” after the magistrate erroneously denied his original motion to suppress.
Penal Code section 1538.5, subdivision (i) provides in part: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.”
The trial court denied defendant’s motion to suppress and motion to dismiss the information, stating: “[I]t is the court’s conclusion that the [Penal Code section] 1538.5 was properly denied at that hearing in February, and the [section] 995 that flows from that regarding the bindover is denied. [¶] The court found it to be a contact by the police that for the time of day under the circumstances was one that, perhaps, the police would have been negligent if they did not pursue, at least, to find out what was happening, and the motion is denied.”
The trial court reduced the felony possession of methamphetamine charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b), based on defendant’s age (47 years old at the time of the incident), his lack of a criminal history, and the small amount of methamphetamine involved in this case. The court granted defendant’s motion to withdraw his not guilty plea and accepted his guilty plea to both misdemeanor counts. The trial court deferred entry of judgment and ordered defendant to enroll in a drug program under Penal Code section 1000. The court advised defendant his guilty plea may be withdrawn and the charges against him dismissed upon his successful completion of the requirements of section 1000.
Defendant, however, failed to appear at the hearing and produce proof of enrollment in a Penal Code section 1000 program. The court terminated proceedings pursuant to section 1000 and sentenced defendant to serve 24 days in the Orange County jail, which amounted to time already served.
Defendant appealed.
STANDARD OF REVIEW
When a defendant renews a Penal Code section 1538.5 motion predicated solely upon the preliminary hearing transcript, or files a motion to dismiss the information under section 995 based on the magistrate’s denial of a suppression motion made at the preliminary hearing, the trial court acts as a reviewing court. (See Pen. Code, § 1538.5, subd. (i); People v. Fulkman (1991) 235 Cal.App.3d 555, 560 [in context of renewed motion to suppress, appellate court disregards ruling of trial court and reviews determination of magistrate]; People v. Ramsey (1988) 203 Cal.App.3d 671, 678-679; People v. Laiwa (1983) 34 Cal.3d 711, 718 [“[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate”].)
On appeal, we defer to the magistrate’s factual findings, express and implied, where supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924; People v. Glaser (1995) 11 Cal.4th 354, 362.) We exercise our independent judgment in determining whether, on those facts, the search or seizure was lawful under the Fourth Amendment to the United States Constitution. (People v. Weaver, supra, 26 Cal.4th at p. 924; People v. Glaser, supra, 11 Cal.4th at p. 362.)
DISCUSSION
Defendant contends the trial court erroneously denied his motion to suppress evidence under Penal Code section 1538.5 because the record showed the officers’ contact with defendant constituted a detention unsupported by a reasonable suspicion. The Attorney General contends the contact constituted a consensual encounter; the Attorney General does not argue that the contact, if deemed a detention, was supported by reasonable suspicion. As we will explain, the record shows Remington and McCollom’s contact with defendant constituted a detention, not a consensual encounter. The trial court therefore erred by denying defendant’s motion to suppress evidence seized through that detention.
The California Supreme Court has explained: “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.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.” (In re Manuel G., supra, 16 Cal.4th at p. 821; see Florida v. Royer (1983) 460 U.S. 491, 498 [a person “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds”].)
The California Supreme Court has further stated: “The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As 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. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur.” (In re Manuel G., supra, 16 Cal.4th at p. 821.) The test for determining the existence of a show of authority is objective; it is “‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’” (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
“‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] 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.” (In re Manuel G., supra, 16 Cal.4th at p. 821; see Brendlin v. California (2007) 551 U.S. __ [127 S.Ct. 2400, 2405] [when “an individual’s submission to a show of governmental authority takes the form of passive acquiescence, . . . a seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave’”].)
Defendant cites People v. Garry, supra, 156 Cal.App.4th 1100, People v. Jones (1991) 228 Cal.App.3d 519, and People v. Wilkins (1986) 186 Cal.App.3d 804, in support of his argument he was detained by Remington and McCollom.
In People v. Garry, supra, 156 Cal.App.4th 1100, 1103, the appellate court held the trial court had improperly denied the defendant’s motion to suppress certain evidence obtained after a police officer had detained him. In that case, a police officer, armed with a baton and gun and in full uniform, was driving his marked patrol car in a “high-crime, high-drug area” late one evening when he saw the defendant standing next to a parked car on a street corner. (Id. at pp. 1103-1104.) The officer turned on the patrol car’s white spotlight and illuminated the defendant. (Id. at p. 1104.) The officer got out of his car which was about 35 feet away from the defendant and started walking “‘briskly’” toward him. (Ibid.) The defendant looked nervous, started walking backwards, and spontaneously stated, “‘“I live right there,” and he pointed to a house on his right.’” (Ibid.) The officer continued to walk toward the defendant and said he “‘just want[ed] to confirm that.’” (Ibid.) The officer asked the defendant if he was on parole and the defendant answered in the affirmative. (Ibid.) The defendant started to pull away, but the officer placed the defendant in an arm-shoulder lock, put him on the ground, and handcuffed him. (Ibid.) The officer arrested the defendant and, following a search incident to that arrest, found 13 individually wrapped pieces of rock cocaine. (Ibid.)
The trial court denied the defendant’s motion to suppress and the appellate court reversed. (People v. Garry, supra, 156 Cal.App.4th at p. 1103.) The appellate court stated: “In the present case, the argument can be made that no detention occurred prior to [the officer] learning about defendant’s parole status. [The officer]’s testimony indicates that he parked his car 35 feet away from defendant, a considerable distance, had no other officers with him, did not use emergency lights, did not draw a weapon, made no verbal commands, went to defendant rather than asking defendant to come to him, did nothing to prevent defendant from leaving, and did not touch defendant prior to learning that he was on parole. [¶] However, [the officer]’s testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. [The officer] testified that after only five to eight seconds of observing defendant from his marked police vehicle, [he] bathed defendant in light, exited his police vehicle, and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half, three seconds’ directly to him while questioning him about his legal status. Furthermore, [the officer] immediately questioned defendant about his probation and parole status, disregarding defendant’s indication that he was merely standing outside his home. In other words, rather than engage in a conversation, [the officer] immediately and pointedly inquired about defendant’s legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that [the officer]’s actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was ‘“not free to decline [his] requests or otherwise terminate the encounter.”’” (Id. at pp. 1111-1112, fns. omitted.)
The appellate court in People v. Garry, supra, 156 Cal.App.4th at page 1112, added, “[w]e find a detention occurred despite the fact that [the officer] did not make any verbal commands. ‘It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.’ [Citation.] No matter how politely [the officer] may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’ [Citation.] [The officer]’s actions set an unmistakable ‘tone,’ albeit largely through nonverbal means, ‘indicating that compliance with the officer’s request might be compelled.’”
In People v. Wilkins, supra, 186 Cal.App.3d 804, 807-809, the appellate court held a police officer had detained the defendant after blocking the path of the car in which defendant was seated. In People v. Wilkins, a police officer was driving a marked patrol car through the parking lot of a convenience market when he saw a station wagon containing two occupants who “‘seemed to lower themselves to conceal themselves in a crouched down position’” as he drove by. (Id. at p. 807.) The officer drove through the parking lot again, intending to find out what they were doing in the area. (Ibid.) The officer parked diagonally behind the station wagon “so that he was ‘. . . essentially blocking that exit of the station wagon.’” (Ibid.) The officer got out of the patrol car and approached the driver’s side of the station wagon. (Ibid.) He smelled a strong odor of burning incense. (Ibid.) He asked the defendant, who was seated in the front passenger’s seat of the station wagon, and the other occupant of the car what they were doing in the area. (Ibid.) They responded to the effect that they were “‘just kicking back.’” (Ibid.) The officer learned the defendant was on probation with a search condition. (Ibid.) The officer searched the defendant and the station wagon, and found a cigarette containing PCP in the defendant’s coat pocket and a wrapper containing PCP in the station wagon. (Id. at pp. 807-808.)
The appellate court concluded the police-initiated contact constituted a detention of the defendant and the other occupant of the station wagon. (People v. Wilkins, supra, 186 Cal.App.3d at p. 809.) The court reasoned: “Here, the occupants of the station wagon were ‘seized’ when [the officer] stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked vehicle was prevented. Under these circumstances, a reasonable person would have believed that he was not free to leave.” (Ibid.)
In People v. Jones, supra, 228 Cal.App.3d 519, 521, the appellate court affirmed the trial court’s granting of a motion to suppress on the ground the record showed a police-initiated contact with the defendant was a detention, not a consensual encounter. In People v. Jones, a police officer on evening patrol in a marked car saw the defendant and two other men standing together on a street corner. (Ibid.) The officer saw one of the men hand what appeared to be money to the defendant. (Ibid.) Aware that the area was “one of ‘very high narcotics activity, sales and use,’” the officer pulled the patrol car to the wrong side of the road and parked diagonally against the traffic about 10 feet behind the group of men. (Id. at pp. 521-522.) As the officer stepped out of his car, the defendant began to walk away. (Id. at p. 522.) The officer said to the defendant: “‘“Stop. Would you please stop.”’” (Ibid.) The defendant, who was about five feet away from the officer, stopped and immediately reached toward his left rear pants pocket. (Ibid.) Fearing the defendant might have a weapon, the officer grabbed the defendant’s left forearm, withdrew his hand from the pocket, and saw a clear plastic bag tied with a red rubber band. (Ibid.) The bag contained cocaine. (Ibid.)
The appellate court affirmed the trial court’s order granting the defendant’s motion to suppress, stating: “Here, [the defendant] was standing on the sidewalk with two other men when he was suddenly confronted with a marked police car pulling across the street toward him. The car then parked diagonally against traffic a mere 10 feet away. When [the defendant] began to leave, [the officer] got out from the car and said something like, ‘“Stop. Would you please stop.”’ We believe the coercive effect of [the officer]’s conduct was clear. A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic. Clearly, [the defendant] was detained.” (People v. Jones, supra, 228 Cal.App.3d at p. 523.)
Here, the record shows Remington parked his car at a diagonal 15 to 20 feet away from the front of defendant’s car, which blocked westbound traffic on Geneva Avenue. Remington activated the patrol car’s rear-facing yellow flashing lights. He also activated the patrol car’s overhead white takedown lights and trained those lights, as well as the spotlight, on the front driver’s side window of defendant’s car where defendant was sitting. At the same time, or moments later, McCollom parked his patrol car “next to” Remington’s patrol car, blocking eastbound traffic. The record therefore shows that the position of the two patrol cars blocked most, if not all, traffic on Geneva Avenue, and, consequently, blocked the path of defendant’s car. McCollom testified he too activated his patrol car’s white takedown lights and spotlight. Both officers were present when defendant was asked what he was doing and when he was asked to get out of the car and step over to the side of the road. We conclude that under these circumstances, a reasonable person in defendant’s position would not have felt free to leave.
Citing People v. Perez (1989) 211 Cal.App.3d 1492, 1496 and People v. Franklin (1987) 192 Cal.App.3d 935, 940, the Attorney General argues, “‘[w]hile the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.’” This case however involved more than the mere use of high beams and spotlights. Here, Remington illuminated defendant with his patrol car’s takedown lights and a spotlight and McCollom activated his patrol car’s takedown lights and spotlight as well. Two patrol cars blocked Geneva Avenue and defendant’s path. Two officers then approached defendant sitting in his car, seeking identification and an explanation for what he was doing. Such circumstances constitute a detention.
The Attorney General also cites United States v. Summers (9th Cir. 2001) 268 F.3d 683 in arguing that “partially obstructing the defendant’s egress with a patrol car does not constitute a detention.” As discussed ante, Remington testified he parked his car at a diagonal that blocked westbound traffic and McCollom testified he parked his car at a diagonal that blocked eastbound traffic. While it is possible defendant might have found a way of maneuvering around the patrol cars or had the option of turning down a nearby alley to leave the scene, a reasonable person faced with the type of blockade created by the officers’ patrol cars and takedown lights and spotlights shining into his car would not feel free to leave. In any event, United States v. Summers is distinguishable because in that case, the officer drove his police car toward the defendant without having activated the patrol car’s lights or siren and it was the defendant who immediately and voluntarily approached the officer, asking (facetiously) “‘[w]hat can I do for you?’” (Id. at pp. 685, 687.) It was under these circumstances, in combination with the partial blocking of the defendant’s car, which led the Ninth Circuit Court of Appeals in United States v. Summers to conclude “the interaction was voluntary, not coerced.” (Id. at p. 687.)
Having concluded that the officers’ contact with defendant constituted a detention under the facts of this case, we consider whether the record shows the officers were justified in detaining defendant. The record here shows that the officers did not have any information “causing [them] to suspect that (1) some activity relating to a crime ha[d] taken place, [wa]s occurring, or [wa]s about to occur; and (2) the person [they] intend[ed] to stop or detain is involved in that activity.” (People v. Jones, supra, 228 Cal.App.3d at p. 524.) The officers’ detention of defendant, therefore, was unjustified, and the trial court erred by denying defendant’s motion to suppress.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. Upon a motion to withdraw defendant’s guilty plea within 20 days of the finality of this decision, the trial court is directed to vacate the guilty plea and reinstate all charges and allegations contained in the information. If a timely motion is not made or defendant waives the right to withdraw his guilty plea, the trial court is directed to reinstate the judgment.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.