PEOPLE v. BROWN

Appellant’s Petition for Review

Cal.June 17, 2014

$218993 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE ) No.: S ) Plaintiff and Respondent, _) No.: D064641 ) v. ) ) (Super. Ct. No. SHAUNTREL RAY BROWN, ) SCS264898) ) Petitioner and Defendant. ) SUPREME COURT FEED ) JUN 17 7014 PETITION FOR REVIEW Frank A. MoGuire Clerk Of the April 22, 2014 Decision From the Court of Appeal, Fourth District Division One, Affirming the Trial Court’s Denial of Appellant’s Motion to Suppress Deputy RANDYMIZE, Chief Deputy Office ofthe Primary Public Defender County of San Diego ROBERT FORD State Bar #185617 Deputy Public Defenders 450 "B"Street, Suite 900 San Diego, California 92101 Telephone: (619) 338-4705 Attomeys for Petitioner SHAUNTREL RAY BROWN IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE No.: S Plaintiff and Respondent, No.: D064641 v. (Super. Ct. No. SHAUNTREL RAY BROWN, SCS264898) Petitioner and Defendant. PETITION FOR REVIEW Of the April 22, 2014 Decision From the Court of Appeal, Fourth District Division One, Affirming the Trial Court’s Denial of Appellant’s Motion to Suppress RANDY MIZE, Chief Deputy Office of the Primary Public Defender County of San Diego ROBERT FORD State Bar #185617 Deputy Public Defenders 450 "B"Street, Suite 900 San Diego, California 92101 Telephone: (619) 338-4705 Attorneys for Petitioner SHAUNTREL RAY BROWN TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .0....ecececceeecccecceesceeseeeseeeceseesseceatecseesacenseeeesneesseeess il-iv PETITION FOR REVIEW .0.0...ccccccccesceeseceeceesceesceeeseeneceeeaeecececesessaceaesesaeeeneseseeseeeaes l INTRODUCTION... occcccccccccccceeceesceeeaceeeeececenaecesseenaesaaeeeaaeescaaesaeseaneeseeaaeeeeeeenenees 2 WHY REVIEW SHOULD BE GRANTED 0.0... eceeceeteescneeeseetseaceeceeeneeeeseseeeneeeenee 3 STATEMENTOF THE CASE ...0....cccccecceceeceeesceeesceesceesceceeececececeneeseresssnaeeeesseeeateeees4 FACTSoooccccccccccccccccssseneeeceeesaeeeseacensceceaeeessaceesseeccsneecseeeseseaeseegetesaeeeeessacereeeeeeeoneseaeees4 ARGUMENT ou... ccccccccccecsccesscceceeceeeesecsecesssaeesscececaeeeseeeseeceseneeeesenesasenseceeseseasereereees 6 I. DEPUTY GEASLAND DID NOT HAVE AN ARTICULABLE SUSPICION PETITIONER WAS INVOLVED IN CRIMINAL ACTIVITY...ceeceseeeseeeessneceeeesreerseees 7 Il. THE DISPATCH OPERATOR'S KNOWLEDGE SHOULD NOT BE IMPUTED TO THE DEPUTY |...eeeeeeeeeeceeseeereneeeeee 10 Ii. PETITIONER WAS DETAINED WHEN THE DEPUTY ACTIVATED HIS OVERHEAD LIGHTS....0......ccceceeeeeseceeeeeeeeeeeees 13 CONCLUSION0... occcccccccccccccesscecnseceececeacecsaeeeseeeessescereaeesssaeersaeeaeeesareeesaneeeseneeenes 16 CERTIFICATE OF WORD COUNT PROOF OF SERVICE APPENDIX “Aooeeceeeeeeeeees Court of Appeal’s Published Decision Affirming Superior Court’s Denial of Appellant’s Motion to Suppress filed 4/22/14 TABLE OF AUTHORITIES PAGE FEDERAL CASES Alabamav. White (1990) 496 U.S. 325 ooecececcccccccccececcceesceeeectesscesceseeneeeeesaaeeseseeseceseeaceaaaestaeeeaeeeatens 8 Brendlin v. California (2007) SSE US. 249 ooo cccccecce cee cesseeeesenecencesaeessseeeeesesesseaenaeaes 3, 14, 15, 16, 17 California v. Hodari D. (1991) 499 ULS. 620 oo. ceeecccccccce cece cceeteeseeenecceneeneensaeeeeeaaesesseseseeseaeeeaeeseneeseetees 14 Florida v. JL. (2000) 529 U.S. 266 0... eecccecceeecceceeseecescecesseecscnseeaeeceanseaeenuseeseeceeeseeeeenseseeees 9,10 Illinois v. Gates (1983) 462 U.S. 213 oo.eeccecccccccceccceceeseessececsceessesseesaeeeseenseeceecesaeeseeeeeaeerseeeeeeeaeess 9 Navarette v. California (2014) 134 S.Ct. 1683 oeecceceeceeeeseeeneeeeesecseeeeceacecseesaeeessaeesaaeecanseeceesseeenaeeeeee 11 Spinelli v. United States (1969) 393 U.S. 410cee eececcccceccsceesseceeceeceessecseesseseeecsesaceeeceseesesseeseeseceeaeesseeeeatens 9 Terry v. Ohio (1968) 392 U.S. ooeeecccecceceececeesenceteeeeeeseeeeseeceseececsneeessaaeecesuescaeseeeeesneeeeneesees 8, 13 U.S. v. Colon (2d Cir.2001) 250 F.3d 130 occee cceccececeescceseceeeaeeeseaaeeeeceeeeeaneseneseateseseeeseeesaes 12 U.S. v. Dockter (8th Cir. 1995) 58 F.3d 1284 oo.eccccecececsceseseeceeeececeecsssseescessaceeseeeeteeeneeeeaeenes 2 United States v. Drayton (2002) 536 U.S. 194 ooo ieeecceeececeseecesseeceececesceeeeeeeseaeeeeeeneeeseaeecnseceaeensceseeeeneseaes 16 United States v. Mendenhall (1980) 446 U.S. 544 occcececcceccencceeeteseseeesecaeesseessneeseessecsesesseeeeseceeaeeeneeesees 14 STATE CASES Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312.0... cccecccccececcesceeseescceeeeeceeeeeseeceesesesseeneecneetaeeeasenees 8 In re Tony C. (1978) 21 Cal.3d 888 ooo. ccccecccececcceeececeseeecseeeceeseeseeeesaceeereeaeesecceaeeeeeeeneneeeseseaeenes 8g ul People v. Bailey (1985) 176 Cal.App.3d 402.0... cceccccececeececcceeceeeeeessecseessecesesssessesseenee 2,3, 13, 15, 16, 17 People v. Bowers (2004) 117 Cal.App.4th 1261 oo. ceecceccccesccseseessseeeeecesescsssessesssesecssessensessses 8 People v. Dolly (2007) 40 Cal4th 458ooocccccsccsececseeeeceeeaeeneessessecaeesseseesesssassssscsescseereesenees 9 People v. Jordan (2004) 121 Cal.App.4th 544ooo. ceeccececescseeescessesecnesstesseseesesseas 3, 11, 12, 13 People v. Perez (1989) 211 Cal.App.3d 1492 oie ieccccceceecesseeseessecssecseeseeesscaeessersessesseseeeeeee 15, 16 People v. Wells (2006) 38 Cal.4th 1078 ooo.ceccncscesecccececseseeseseaessesseeaesaesessessesecseesececsseseenees 9 OTHER STATE CASES Commonwealth ofPennsylvania v. Krisko (2005) 884 A.2d 296 .oocccccccccccccsssscccssesescssssesessecessrecessseersececsecenssesssesesseceeseesnseees 2 Hammons v. State (1997) 327 Ark. 520 ooo. eecccccccssscesesscessessccussssccscacscesssessscecsarssacestsecuersesseeesneeeees 2 Lawson v. State (Md. Ct. Spec. App. 1998) 120 MdApp. 610.0... eccececscesssessssessssssssecssceesesseees 2 People v. Cash (Il. App. Ct. 2009) 396 TILApp.3d 931 ccceeccceccscsessscesessccesssessssssssscessessesseees 2 People v. Laake (2004) 348 HLApp.3d 346 oo. cccccccecccsccecssecssetsrecesssesecsessessssssusessvecessscsceseeesreees 2 Smith v. State (Fla. Dist. Ct. App. 2012) 87 S0.3d 84.0... cece ceccccecesessssessstsssecsserssesesseesenseeeees 2 State v. Baldonado (1992), LIS NM. 106.cececcecsccsccsssecessssccccseecessacecesuecetasesssacesessntecerenaees 2 State v. Burgess (1995) 163 Vt. 259 ooo cecccccccccsccescesssessceeseeessecsssesessscesecsecessseessaesereees 2 State v. Donahue (1999) 251 Conn, 636.00. ccleccccccscesessesssscceeseesesccsecncececesesssccecesetassesseecnecansneeess 2 State v. Gonzalez (Tenn.Crim.App.2000) 52 S.W.3d 90, 97 ooo. cceeccceesscesssesescessecessesssceseseevenes 2 State v. Morris (2003) 276 Kan. Voie. ccccccccccccccccecccescececesessssecenecuesevessuaueceseeserscecessecsensneeeecesnace 2 ill State v. Williams (Tenn. 2006) 185 S.W.3d 311 oo. ececececccecece eens cress eeeeeesscnesseceseeeaeneeneeneeteneneees 2 State v. Willoughby (2009) 147 Idaho 482 0...cteete c cere c eee cee eee ereeceeeneseneeenesscuaeeceteescestneeteesaeeeses 2 Wallace v. Com. (2000) 32 Va.App. 497 oe ceecceccceeceeeecsceeceeesceeceecseessssesssaseneesesnerereeeseesesteeeaeeee 2 STATUTES Penal Code Section 1170, subdivision (h)........ecccceessceecsesceceeetssceeeeeseseceseeseeessaeeeseeeeessaneeeeeneea 4 Vehicle Code Section 23152, subdivision (b)..........ccceeeeesceeeeseeeeseessaeeeeeeeseasesaeeesaeeseseeeeseneeaeeees 4 Section 23550, Subd. (a) ......ceeeeeeeecessceeccececescesseeseseenscensaeacsassaasseseesesesanesssaeenaerars 4 Section 23578 ..ccccccccscsssccssscceessecsseeessnneceeeeeeeeseeceessseeceessesaeecensseseassessseeseseeeseseeaees 4 RULES California Rules of Court Rule of Court 8.500, subdivision (b)(1) .........ceeeeeeece cesses ceeseeeeeeeseeneneennneeenserene 3 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People ) No.: S ) Plaintiff and Respondent ) No.: D064641 V. ) (Super. Ct. No. ) SCS264898) ) SHAUNTREL RAY BROWN , ) PETITION FOR ) REVIEW Defendant and Appellant. TO THE HONORABLE CHIEF JUSTICE CANTIL-SAKAUYE AND THE HONORABLEJUSTICES OF THE CALIFORNIA SUPREME COURT Petitioner, Shauntre! Ray Brown, by and through his attorney, the Public Defender of the County of San Diego, respectfully petitions this honorable court to grant review of the Court of Appeal’s April 22, 2014 Published Decision Affirming the Superior Court’s denial of Mr. Brown’s Motion to Suppress. In the alternative Petitioner requests de-publication. A typewritten copy of the opinion is appended as Appendix A. INTRODUCTION | In this case a deputy respondedto a fight betweenat least four pedestrians in an alley. Although he arrived in with three minutes, the deputy saw only a lone driver leaving the alley. After driving through the alley and seeing nothing to confirm fight, he found the samecar that passed him parked onthe street. The deputy parked behindthecar, activated his overhead lights, and investigated the driver. In upholding the stopin this case, the Fourth District Court of Appeal disagreed with or ignored three separate lines of cases. The court disagreed with twenty nine year precedent that holds a red light directed towards a stopped vehicle constitutes a detention. (People v. Bailey (1985) 176 Cal.App.3d 402.) Bailey has been the rule not only in California, but in jurisdictions throughout the United States.’ By finding that the driver here failed to demonstrate submission to the show of police authority, the Court below not only disagreed with Bailey, it also 1 (See State v. Burgess (1995) 163 Vt. 259, 261, 657 A.2d 202; Hammonsv. State (1997) 327 Ark. 520, 528, 940 S.W.2d 424; Lawson v. State (Md.Ct. Spec. App. 1998) 120 Md.App. 610, 617-18, 707 A.2d 947, 951; State v. Donahue (1999) 251 Conn. 636, 643, 742 A.2d 775; Wallace v. Com. (2000) 32 Va.App. 497, [528 S.E.2d 739]; State v. Gonzalez (Tenn.Crim.App.2000) 52 §.W.3d 90, 97; People v. Cash (IL. App. Ct. 2009) 396 IlApp.3d 931, 946-47 [922 N.E.2d 1103, 1114]; State v. Willoughby (2009) 147 Idaho 482, 489 [211 P.3d 91, 98]; People v. Laake (2004) 348 IN.App.3d 346, 284 Ill.Dec. 203, 809 N.E.2d 769, 772.) The decision is also at odds with jurisdictions that have held that a red light indicates a detention, but amber lights or emergencylights used as a hazard warning might not depending upon the circumstances. (See State v. Baldonado (1992), 115 N.M.106, pll0, 847 P.2d 751]; US. v. Dockter (8th Cir. 1995) 58 F.3d 1284, 1287; State v. Morris (2003) 276 Kan. 11, 24 [72 P.3d 570, 579}; Commonwealth ofPennsylvania v. Krisko (2005) 884 A.2d 296, 300-01; State v. Williams (Tenn. 2006) 185 S.W.3d 311, 318; Smith v. State (Fla. Dist. Ct. App. 2012) 87 So.3d 84, 88.) ignored a recent case from the United States Supreme Court, which held that a suspect submits to a show ofpolice authority by simply staying put. (Brendlin v. California (2007) 551 U.S. 249.) Lastly, the Court below disagreed with a 10 year old case, People v. Jordan (2004) 121 Cal.App.4th 544, whichholdsthat a civilian 911 operator cannot impute knowledgeto an officer in the field underthe collective knowledge doctrine. (Jd. at p. 560, fn. 8.) Petitioner respectfully submits these three cases should not be countermandedbutrather should dictate the result in this case. WHY REVIEW SHOULD BE GRANTED Review should be granted first because there is now split of authority andit is now necessary to secure uniformityofdecision. (Subdivision (b)(1) of Rule of Court 8.500.) The lower courtexpressly disagrees with People v. Bailey, supra, 176 Cal.App.3d 402, which hasestablished for 29 years that a red light directed at a parkedcaris a detention becauseno reasonable person would feel free to leave. (/d. at p. 406.) The court’s holding is also at odds with Brendlin v. California, supra, 551 U.S. 249, which held citizens show submission to police authority by simply remaining where they are when the police signal them to stop. The Court of Appeal fails to acknowledge the holding in People v. Jordan, supra, 121 Cal.App.4th 544, by imputing facts knownonly by the dispatch operator to the deputyin thefield. Apart from the express and implicit departures from settled law, the issues in this case are important in their own right: Maypolice officers’ hunches be saved by incorporating information the officer does not have? Does a defendant have the burden of showing submission to authority when the un- contradicted evidence is that he stayed exactly where he was after police activated their overhead lights? STATEMENT OF THE CASE Petitioner is the defendantin the criminalaction entitled Peoplev. Shauntrel Ray Brown, No. SCD248478. Uponthe denial of his motion to suppress he entered a guilty plea to one countof driving with a measurable blood alcohollevel of 0.08 percent or greater (Vehicle Code section 23152, subdivision (b)). Petitioner admitted that he had suffered three or more prior convictions for driving underthe influence within the previous 10 years and that his blood alcohol at the time of this offense was 0.15 percent or greater (Veh. Code, §§ 23550, subd. (a); 23578.) The court sentenced Petitioner to two years in local custody pursuant to Penal Code section 1170, subdivision (h). The Court of Appeal affirmedthe trial court’s denial of the motion to suppress. FACTS On the evening ofMay 26; 2013, a 911 call was madeto the San Diego County Sheriff's office reporting a fight in an alley in the City of Imperial Beach. The recordingofthe call was played for the court during the suppression motion. The caller providedhis location to the dispatcher and reported a fight located two housesto the north in the alley involving at least four people. The caller could only see shadowsfrom his vantage point and based his call on what he could hear. He heard someone claim they had a loaded gun. Sheriff's dispatch alerted Deputy Geasland as follows: “415 Fight, I.B., 1169 Georgia, south of Coronado, North of Fern in the alleyway, four subjects. Somebody may have said something about a loaded gun.” The deputy, in a markedpatrolcar, arrived at the scene within three minutes of the call and saw a car facing him with its headlights on which started driving towards him. Helater testified “[h]e was coming from the exact address wherethe fight call came out.” Seeing no one else, Deputy Geaslandtried to yell at the driver as he passed him: “Hey! Did yousee a fight? Anything about a fight?” The lone driver did not appear to acknowledge the deputy in any manner. Deputy Geasland thoughtthe driver either failed to hear him because his window wasupor simply ignored the questions while he slowly drove downthe alley and outof sight. Deputy Geasland, who had no information about car, nor a physical description of the participants, drove through the reported location then turned around. Although he saw nofight, he did not consider confirming the call because he believed the caller was anonymous. Deputy Geaslandfelt if there had been a fight and if a gun had been involved, then the driver of the car that passed him might have been involved, might have possessed a gun, or might have been injured. He drove around the area until he saw the samevehicle that passed him in the alley parked on Georgia Street with its brake lights on. Although Deputy Geasland did not observe the vehicle commit any movingviolations, he put on his overhead lights and pulled in behind the vehicle to confirm his hunches.Petitioner remained parked as the deputy approachedthe driver’s side of the vehicle. After obtaining Petitioner’s license, Deputy Geasland observed red watery eyes, mumbledspeech, and the odor of an alcoholic beverage.Petitioner seemed flustered, ‘amped up,’ and upon questioning, he admitted that there had beena lot of ‘drama’in the alley. Deputy Geaslandcalled for a traffic officer, Deputy Jackson, to complete the DUI evaluation. Deputy Geasland wasthe only witnessto testify at the suppression motion, but defense counsel read portions of Deputy Jackson’s preliminary hearing testimonyinto the record asprior inconsistent statements. Deputy Geasland previously told Deputy Jackson he was aboutto enterthe alley but then he saw Petitioner leaving it. Because Deputy Palencia had already driven through the alley, Deputy Geasland followed Petitioner’s car and then pulled it over as it was driving north on Georgia Street. Deputy Geasland’s recollection was also questioned because he did not write a report until after the motion to suppress wasfiled. Thetrial court, after reviewing the 911 call, the testimony of Deputy Geasland, and the preliminary hearing testimony from Deputy Jackson, concluded that Deputy Geasland wascredible and accepted his testimony as true. The court denied the motion to suppress. ARGUMENT Deputy Geasland believed the call was based upon an anonymoustip. In contrast, the dispatch operator knew the call camein on landline, confirmed the address with the caller, and could overhear some shouting. The dispatch operator learned that there was a womaninvolved,at least four African Americans, and a large American car was leaving the scene. Deputy Geasland had no information about a vehicle, and his only description of the participants was numerical, four subjects. Deputy Geasland madehis decision on hunches. There might have been fight, andif there was fight, someone coming from that direction might have been involved. The Court of Appeal refuses to base the totality of circumstances on what was known by the deputy when he decidedto detain Petitioner, but dogmatically states the call was reliable as determined by the 911 operator and the reliability of the call is tempered by public safety concerns. Thisis in contrast to current California law which states fact known, but not communicated, by a civilian 911 operator should not be imputed to an officer in the field. The Court of Appeal held Petitioner did not demonstrate that he yielded to the show of authority and therefore there was no detention, but no reasonable personsitting in a parked car would feel free to leave if a police cruiser pulled in behind him andactivated his emergency lights. Law abiding citizens signal submission to a detention by simply remaining parked and waiting for the officer to approach. This begs the question. What must a stopped person do to demonstrate a submission to the show ofauthority besides wait? I. DEPUTY GEASLAND DID NOT HAVE AN ARTICULABLE SUSPICION PETITIONER WAS INVOLVED IN CRIMINAL ACTIVITY. WhenDeputy Geaslandarrived in the alley he believed he was investigating a fight call from an anonymousinformant. He immediately tried to verify the information by asking aboutthe fight from the car passing him, but the driver continued without acknowledging his presence. He had no indication that the driver even heard his questions. The deputy then drove further downto alley to corroborate the fight, but did not see, smell or hear anything that would indicate a fight or a gun. Hedid not think he could contact the caller to even confirm he wasin the right location. This case should not have been decided based upon what was known bythe 91] Operator, but by what was known by Deputy Geaslandat the time he madeis detention. Although circumstancesshort of probable cause to arrest may justify an officer's investigative detention, a detention may not be premised on mere curiosity, tumor, or hunchthat the detainee is involved in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21-22.) Instead, an investigative detention must be justified by specific and articulable facts, measured by facts known to the officer at the time he or she detains the suspect (People v. Bowers (2004) 117 Cal.App.4th 1261, 1268-1271), that make it objectively reasonable for an officer in a like position, drawing on training and experience, to suspect(1) a crime has occurred or is occurring and (2) the detainee is involvedin that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Fourth District Court of Appeal held all of this to be true in Giovanni B. vy. Superior Court (2007) 152 Cal.App.4th 312, 320. Deputy Geasland “knew”the call was anonymous,thus it was one of the facts he was to use in assessing the totality of the circumstances when he decided to detain Petitioner. In 1990, the United States Supreme Court considered the weight to be given an anonymoustelephone tip when determining if there was a reasonable suspicion to detain a person suspected ofpossessing drugs. (See Alabama v. White (1990) 496 U.S. 325, 328.) The Court held the “totality of the circumstances” approachis the correct method of analysis, and that this approach requires the consideration of both the quantity and quality ofall the information possessed by the police. (White, supra, 496 U.S. at pp. 328-332.) The court stated that the anonymoustip, standing alone,did not justify the Terry stop. (White, at p. 329.) However, the Court upheld the detention because the caller was able to predict future behavior of the suspect, and when the police were able to corroborate that future behavior, it inferred the informant knewintimate details about the suspect, including his criminalactivities. Ud. at p. 332.) Self-verifying detail is also considered to be more valuableif it relates to suspicious activities than innocentactivities. See I/linois v. Gates (1983) 462 U.S. 213, 245.) An informant's “explicit and detailed description of alleged wrongdoing,along with a statement that the event was observedfirsthand, entitles his tip to greater weight than might otherwise be the case.” (Gates, supra, at 234.) A tip is less reliable without personal observation. (See Spinelli v. United States (1969) 393 U.S. 410.) In this case, Deputy Geasland not only thought the tip was anonymous,but the information did not appear to derive from firsthand observation because he wastold “somebody mayhave said something about a loaded gun.” That is a far cry from a caller reporting that he had seen or been threatened with a gun. There were also no future behaviors predicted by the caller. The“totality of the circumstances”analysis includes a public safety factor; a greater threat to public safety requires less reliable tip to justify a detention. Exigent circumstances, such as a report of someonecarrying a bomb, might justify a stop and search “even without a showing ofreliability.” (See Florida v. JL. (2000) 529 U.S. 266, 273; People v. Wells (2006) 38 Cal.4th 1078, 1083; People v. Dolly (2007) 40 Cal.4th 458, 463.) The Fourth District Court of Appeal reasonedthe instant call wasentitled to greater weight because it reported potential violent activity involving a firearm, and was thus similar to similar to the reports in Dolly, supra, 40 Cal.4th at page | 464 and Wells, supra, 38 Cal.4th at p. 1083. (See T.O., p. 8) Not so. Wells distinguished its case from Florida v. JLL., supra, 529 U.S. 266 in that a report of a possibly intoxicated driver weavingall over the roadway posed “a far more grave and immediate risk to the public than a report of mere passive gun possession.” (Wells, supra, 38 Cal.4th at p. 1087.) In this case no one reported being threatened with a brandished firearm. In Dolly an unidentified 911 caller believed the perpetrator was about to shoot him. He reported an African-American male had “just pulled a gun” on him and mentioned a gang name. Thecaller described the perpetrator, a bandage onhis arm, a description of his parked vehicle, and his exact location. When the police officers arrived within minutes, they easily identified the perpetrator and found a loaded .38-caliber revolver. (Dolly, supra, 40 Cal.4th at page 462.) In the instant case, the caller did not personally see or hear a gun and he wascertainly not threatened. When Deputy Geaslandarrived at the scene he saw no blood, no casings, no woundedand nofight. He saw nothing that indicated a dangerto the public, there was no reason to enhancehis perceived reliability ofthe tip. II. THE DISPATCH OPERATOR’S KNOWLEDGE SHOULD NOT BE IMPUTED TO THE DEPUTY. The dispatch operator had details that she did not communicateto the deputy. Although the caller did not verbally identify himself, his address was knownbyvirtue of the call coming from a landline and his confirmation of ~ his address. The operatorheard raised voices. The caller could notsee anyone, but believed African Americans were involvedin the disturbance 10 and they drove large American cars. The caller did not personally observe anything but shadows,and never saw a gun, but heard someoneclaim they possessed one. How muchofthat knowledge should be imputed to the responding deputy? If the dispatch operator received the call from a computerorcell phone andthe participants were identified as Asian Americansriding motorcycles, would the detention of Petitioner, an African American, be lawful based upon the information known by Deputy Geasland? The Fourth District Court of Appeal appears to impute the dispatch operator’s assessmentofthe caller’s reliability to Deputy Geasland: “Understandably Browncites no authority for the proposition that an officer, acting on directions from a dispatcher, must personally assessthe reliability of the person who madethe original 911 report.” (See Typewritten Opinion, (T.O.) p. 8.) Certainly an officer getting information second hand from a dispatcher is not required to determine whetherthecalleris reliable, but he could be given objective facts that would tell him if the call could be verified, such as the address ofthe caller, or even that the call came through 911 ona landline. An officer can give more weightto a tip whenthe caller could be held accountable for making a false report. (See Navarette v. California (2014) 134 S.Ct. 1683, 1690.) The issue here is impute-ability. The reliability of the call is less important than the quantum of information that the deputy possessed to determine if he had the facts to support a detention. Petitioner cited People v. Jordan (2004) 121 Cal.App.4th 544 in his opening brief, which the Fourth District Court of appeal simply chose to ignore in their opinion. The Fifth 1] District Court of Appeal addressed a nearly identical situation of unreported information when they determined officers lacked a reasonable suspicion to detain an armedfelon at a described location based upona citizen’s tip: In this case, werestrict our analysis to the information actually providedto the officers in the field because respondenthas not addressed whether the information learned by the 911 operator but not relayed to the officers should be imputed to the officers. (See U.S. v. Colon (2d Cir.2001) 250 F.3d 130 [application of the collective or imputed knowledge doctrine and determination that record did not support a holding that informationtold to a 911 operator could be imputedto police officers].) Information obtained by the 911 operator that was not relayed to the officers included (1) more specific information about the suspect's appearance(bald, light-skinned, andin his /ate 30's), (2) the allegations that the suspect had “been threatening to shoot people,” (3) more specific information aboutthe type of gun, ie., “small, like a .22, .25,” and (4) the manner in which the informant reported the information, such as the tone of voice, rate of speech, and accent. (See Jordan, supra, 121 Cal.App.4th at p. 560.) In Jordan, as in most collective knowledge cases, the police had a detailed description of a suspect, including the location of his concealed firearm. Dispatch reported the following “Subject is a black male in his 30's, black jacket, white shirt, tan pants and red boots. Possibly carrying a concealed hand gunin his right front coat pocket. R/P no contact.” (Jordan, supra 121 Cal.App.4th at p., 550.) In the instantcase, Deputy Geasland had no description of anyone andcertainly no description of where a gun could be found. In Jordan a person matchingthat description was foundat the location described bythecaller. 12 In Jordan the police were unable to corroborate dangerous behavior. The suspect’s behavior and appearance did not suggest that he presented an imminent dangerto a specific individual, to the public in general, or to the officer. (See Jordan, supra, 121 Cal.App.4th at p. 563.) As in Jordan, Deputy Geasland was unable to make observationsthat suggested Petitioner presented an imminent danger to anyone, muchless any indication that criminalactivity may be afoot. Unlike Jordan, Deputy Geasland did not have any description of the individual who wassuspected to be armed. There was no articulable suspicion of criminal activity, only a hunch. inl. PETTITIONER WAS DETAINED WHEN THE DEPUTY ACTIVATED HIS OVERHEAD LIGHTS. In 1985 the Sixth District Court of Appeal decided in People:v. Bailey, supra,176 Cal.App.3d 402 that, “[a] reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he droveoff, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual.” (/d. at p. 406.) The court logically basedits conclusion on well-established United States Supreme Court precedent and commonsense. In 1968, in Terry v. Ohio, the U. S. Supreme Court stated a person is seized “when an officer, by means of physical force or show ofauthority, has in some wayrestrainedthe liberty of a citizen.” (Terry v. Ohio (1968) 392 U.S. 1, 19 n. 16.) Later, the Court clarified that a seizure occurs through a show of authority, “only if, in view ofall of the circumstances surrounding the incident, a reasonable person would have believed that he was notfree to leave. ’(United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall); INS v. Delgado (1984) 466 U.S. 210, 215.) The U.S. Supreme Court then addedanotherlayer to the Mendenhall show ofauthority standard by stating a seizure does not occur until the person submits to the show ofauthority California v. Hodari D. (1991) 499 U.S. 621, pp. 624, 628, 629.) (Hodari) In Hodari, police officers wearing jackets which displayed the word "Police" approached a group of young males. (/d. at p. 622.) Upon seeing the approaching officers the group moved away. Police called out to the group that they were police officers and demanded the young mento stop. Notwithstanding the officer's clear showing of authority and their demands that the group stop, Hodari D. took flight. Police gave chase andjust prior to being tackled by a police officer, Hodari jettisoned a package containing narcotics. (/d. at pp. 622-623.) The majority in Hodari noted: “Wedid not even considerthe possibility that a seizure could have occurred during the course of the chase because, as we explained, that ‘show of authority’ did not producehis stop.” (Hodari, supra, 499 U.S.at p. 628.) In contrast to a pedestrian fleeing from the police, the U.S. Supreme Court held that a person may show submissionto authority by simply remaining at the scene: “a fleeing manis not seized until he is physically overpowered,but onesitting in a chair may submit to authority by not getting up to run away. Here, Brendlin had no effective way to signal submission while the car wasstill moving on the roadway, but once it came to a stop he could, and apparently did, submit by staying inside.” (Brendlin v. California, 14 supra, 551 U.S. 249, 261-62.) The Fourth District Court of Appeal apparently found Brendlin irrelevant to this case, choosing instead to agree with the dissent in Bailey which noted there was no evidence Mr. Bailey yielded to the show of authority as he wasalready stopped without any reference to police action. (Bailey, supra, 176 Cal.App.3d at pp. 407-408, (dis. opn. of Agliano,J.).) The lower court also chose to expand the reasoning of the Sixth District Court of Appeal in People v. Perez (1989) 211 Cal.App.3d 1492, 1495-1496 (Perez) in which the court observed: "Unlike Bailey, the officer here did not activate the vehicle's emergencylights; rather, he turned on the high beams and spotlights only. These differences are substantial because the conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he wasnotfree to leave. While the use of high beamsand spotlights might cause a reasonable person to feel himself the object of official scrutiny, such scrutiny does not amountto a detention." (/d. at p. 1496.) The Fourth District Court of Appeal then concluded there was no material difference between a police car activating red lights or using high beams andspotlights on a stopped car. “In both cases there is an apparent showing of police presenceandpolice interest in the occupants of the stopped vehicle. In both instancesthereis a clear likelihood that police will give chaseif the person drivesoff.” (T.O., p. 11.) The lower court therefore appears to have rejected binding authority from the United States Supreme Court while expanding the holdings of persuasive authority in order to abolish a long establishedrule that clearly informs citizens as to when they are detained. The opinionfails to define 15 what steps are required to demonstrate a submissionto authority. Instead, the court appears to categorize the deputy’s encounter with the driver as an unavoidable consensual encounter. If the driver moves, he violates a failure to yield statute. If the driver remains he is not detained, yet. When would the driver be detained? Would it be after the deputy poses questions abouthis activities? Would it be after the deputy asks for a license? Wouldit be after the deputy asks and obtains permission to search the car? None of those requests constitute a detention as long a person feels free to break the encounter. (See United States v. Drayton (2002) 536 U.S. 194.) So exactly when would the driver feel free to break the encounter? Petitioner maintains that he submitted to the show of authority by simply remaining at the scene. He was detained whenthe overheadlights were activated and he remained where he was. The detention was not justified by anything Deputy Geasland knewat the timeheactivatedhis overhead lights. Well established case law supports Petitioner’s position. By contrast, the lower court’s ruling disagrees with the many cases from multiple jurisdictions that have relied on Bailey and its progeny as well as Brendlin and Perez. 16 CONCLUSION Based on the foregoing, petitioner request review be granted. These are issues with conflicting case law, and the Bailey case has been relied upon nationally for twenty nine years. The court below also ignores a rule of law set forth by the United States Supreme Court in Brendlin. The ruling that a peace officer’s activation of his overhead lights does not result in the detention of a stopped vehicle gives the public no recourse to avoid what has now been deemedfor all purposes a consensual encounter. Dated: June 2, 2014 Respectfully submitted, RANDY MIZE Primary Public Defender By: 4haceGFZ ROBERT FORD Deputy Public Defender Attorneys for Petitioner SHAUNTREL RAY BROWN 17 CERTIFICATE OF WORD COUNT I, ROBERT FORD,herebycertify that based on the software in the word processor program, the word count for this documentis 4,561 words. Dated: Litre 4) fol fF Respectfully submitted, RANDY MIZE Primary Public Defender By: LatIPT ROBERT FORD Deputy Public Defender Attorneys for Petitioner SHAUNTREL RAY BROWN CERTIFICATE OF SERVICE Rule 1.21(c) CASE NAME:People v. Brown Ct. Appeal 4" DCA,Div. 1 No.: D064641 Super. Ct No.: SCS264898 I, Vanessa Thompson,declare as follows: Jam employed in the County of San Diego, State of California; J am over the age of eighteen years and am nota party to this action; my business address is 450 "B"Street, Suite 900, San Diego, California 92101-4009, in said County and State. On June 2, 2014, I served the foregoing document: PETITIONFOR REVIEW on the parties stated below, by the following meansofservice: BY INTEROFFICE MAIL: Pursuantto Rule 1.21(b), on the above-mentioneddate I personally deposited in the United States Mail true and correct copies thereof, each in a separate envelope, postage thereon fully prepaid, addressed to the following [See Service List]. . BY PERSONAL SERVICE: Onthe date of execution of this document, J personally served true and correct copies of the above-mentioned document(s) on each ofthe following [See Service List]. BY FAX: From fax number(619) 338-4847, I caused each such documentto be transmitted by fax machine, to the parties and numbersindicated above, under California Rules of Court, Rule 2.306. The fax machinethat I used complied with Rule 2.301 and noerror was reported by the machine. BY E-MAIL: On the above-mentioned date, I caused a true copy of said documentto be emailed to said parties’ e-mail addresses as indicated on the attached Service List. (Rules of Court, Rule 2.251(c)(1)) (STATE) I declare under penalty of perjury underthe lawsof the State of California that the foregoingis true and correct. Executed on b/2/\20; J haanTfLQ. Vanessa Thompson Declarant SERVICE LIST Clerk of the Superior Court “© JUDICIAL SERVICES 220 W. Broadway San Diego, Ca 92101-3409 Phone: (619) 450-5500 (personal service) South County District Attorney Office Attn: Appellate Unit 325 S. Melrose Drive Vista, CA 92081 Phone: (760) 201-8600 x 17120 (by interoffice mail -- MS: N-160) Court of Appeals — 4"" DCA.Div.1 Attn: Clerk of the Court 750 “B”Street, Suite 300 San Diego, CA 92101 Phone: (619) 744-0760 (personal service) Kamala D. Harris Califomia Attorney General Attn: Appellate Division 110 West 'A' Street, Suite 1100 San Diego, CA 92101 Phone: (619) 645-2001 (personal service Mr. SHAUNTREL RAY BROWN (through counsel) APPENDIX "A" CERTIFIED FOR: PUBLICATIOX. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions notcertified 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. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D064641 Plaintiff and Respondent, Vv. (Super. Ct. No. SCS264898) SHAUNTREL RAY BROWN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, AnaL. Espana, Judge. Affirmed. | Henry C Coker, Public Defender, Randy Mize, Chief Deputy, Emily Rose Weber andRobert L. Ford, Deputy Public Defenders, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. Shauntrel Ray Brown entered a guilty plea to one count of driving with a measurable blood alcohol level of 0.08 percent or greater (Veh. Code, § 23152, subd. (b)). Brown admitted that he had suffered three or more prior convictions for driving underthe influence within the previous 10 years and that his blood alcoholat the time ofthis offense was 0.15 percent or greater (Veh. Code, §§ 23550, subd.(a); 23578). The court sentenced Brown to two years in local custody pursuant to Penal Code section 1170, subdivision (h). Brown appeals contending the trial court erred in denying his motion pursuantto Penal Codesection 1538.5 to suppress evidence on Fourth Amendment grounds. Wewill find the trial court properly decided the officer had reasonable suspicion to detain Brown andthat the court correctly concludedthat in any event, Brown wasalready stopped _before the deputy attempted to contact him. In our analysis of the issues presented in this case we concludethat when a vehicle is already stopped, without police action, merely activating emergency lights on a police vehicle, without more, does not constitute a seizure within the Fourth Amendment. Accordingly, we will disagree with the decision in People v. Bailey (1985) 176 Cal.App.3d 402 (Bailey),.on which Brownrelies. STATEMENT OF FACTS Since the only issues raised in this appealrelate to the denial of the motion to ‘Suppress evidence wewill recite the facts from the transcript of that motion. On the evening ofMay 26, 2013, a911 call was made to the San Diego County Sheriff's office reporting that a fight was taking place in an alley in the City of Imperial Beach. The recording ofthe call was played for the court during the suppression motion. The caller, who providedhis location to the dispatcher, reported a fight involving a number ofpeople in an adjacent alley. There was a referencein thecall to the presence of a loaded gun possibly involvedin the affray. The Sheriff's dispatcher alerted Deputy Geasland about the "fight call" and the location. The deputy, in a markedpatrolcar, arrived at the scene within three minutesofthe call. The deputy drove downthe alley where the fight was reportedly taking place. He did not see any people in the alley, however, he encountered Brown who was driving his car out of the alley. The deputy called out to Brown as he drove by asking, "Hey. Hey. Did you see a fight?" Browndid not respond and continuedoutofthe alley. The lack of response and discovering Brown in the "exact location" of the reported fight aroused the deputy'ssuspicion. Deputy Geasland wasable to turn his car around and wentin the direction he had seen Brown take. When he gotoutofthe alley, Geasland observed Brown's car parked along the side of the road with the brake lights on. Geasland testified that he was concerned because the call had mentioned a loaded firearm and was considering the possibility that Brown had been injured. Therefore, Geasland pulled his patrol car in behind Brown's parked car and turned onthe patrol car's overhead emergencylights. The deputy then approached the car and made contact with Brown. He immediately noticed that Brown appeared to be intoxicated. His eyes were watery and bloodshot. He was mumbling and appeared flustered and upset. Geasland could smell the odor of alcohol and asked Brownifhe had been drinking and if he had been involved in a fight. Brown answeredaffirmatively to both questions. 3 Geasland subsequently called traffic unit to conduct further investigation of the possibility that Brown had been driving underthe influence. Deputy Geasland was the only witnessto testify at the suppression motion. Thetrial court, after reviewing the 911 call andthe testimony of Deputy Geasland, | concluded that Geasland wascredible and accepted his testimony as true. The court then denied the motion to suppress. DISCUSSION I DID THE DEPUTYHAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY? Brown contends that we musttreat the 911 call as an anonymoustip and further argues that the call, plus the deputy's observations do not separately or collectively amount to reasonable suspicion as required by Terry v. Ohio (1968) 392 US. 1. We disagree with Brown's analysis. Thecall from an identified citizen reporting contemporaneousobservationsis entitled to more credence than an anonymoustip, absent some circumstance that may cause police to question the caller's reliability. The deputy's immediate arrival on the scene and thenature’ ofthe reported activity, in our view gave the deputy sufficient articulable facts to support reasonable suspicion that criminal activity was taking place. Hence, the actions that followed were lawful. A. LegalPrinciples 1. Standard ofReview — In ruling on a motion to suppress evidence on Fourth Amendmentgrounds,the trial court first determines the facts underlying the police action and then must apply the 4 law to those facts in order to resolve the dispute. (People v. Lawler (1973) 9 Cal.3d 156, 160.) On appeal we review thetrial court's factual findings under the deferential substantial evidence standard of review. Once we determinethetrial court's factual findings are supported in the record, we independently review the legal issues arising from those facts. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Miranda (1993) 17 Cal.App.4th 917, 922.) 2. Reasonable Suspicion Police may temporarily detain a person to investigate possible criminal activity wherethe officer can pointto specific facts that, consideredin light of the totality of the circumstances, provide some objective manifestation that the person to be detained may be involved in criminal activity, (People v. Souza (1994) 9 Cal.4th 224, 231.) A finding of reasonable suspicion of criminal activity requires less information than a finding of probable cause. (Alabama v. White (1990) 496 U.S. 325, 330.) Police may base a finding of reasonable suspicion on their own observations together with information from other sources. In Alabama v. White, supra, 496 U.S..325, the court held that an anonymoustip, together with partial corroboration of the tip by police, could provide sufficient information to justify an investigative detention. In evaluating police action courts can considerthe reliability of the information police receive from others.! The evaluation of 1 In Illinois v. Gates (1983) 462 U.S. 213, 230, the court upheld a finding of probable cause, based on an anonymoustip, without information about the tipster's source of knowledge,in light of the corroboration done by law enforcement. 5 the source of information dependsonthe nature of the source of the information and the detail whichit provides. Anonymoustips present the problem of lack of knowledge and in someinstances the source ofthe tipster's information. As a general proposition, information from an identified citizen, based on that person's own observations,is at least presumptively reliable, in the absence of any circumstancethat may call the person's reliability into question. (People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504-1505.) In People v. Dolly (2007) 40 Cal.4th 458, 461 (Dolly), the court considered a case involving ananonymous tip about an assault with a deadly weapon which the caller had observed. In that case the caller gave a detailed account of what had been observed and particularly described the alleged assailant. (Id. at pp. 464-465.) The court considered the nature ofthe criminal activity described, whichthe court found to present an urgency for a police response. The court in Dolly distinguished its case from the circumstances of Florida v. J.L. (2000) 529 U.S. 261, 273 (/.L.), in which the United States Supreme Court found the anonymoustip was notsufficiently corroborated by police before restraining the suspect. In J.-L. the tip described a teenaged suspect who wasstanding on street comer. Thetip alleged the minor had a gun underhis shirt. Police accosted the minor- and frisked him without any information beyondthetipitself. The court's analysis in Dolly, supra, 40 Cal.4th 458, 463, included an evaluation of various formsoftips to police. The court reasonedthattips reporting observations of on- going dangerousactivity with precise information have some enhancedcredibility as opposed to a generic anonymoustip, citing People v. Wells (2006) 38 Cal.4th 1078, 1083 (Wells). In Wells the court found an anonymoustip describing dangerous, reckless 6 driving taking place could justify an investigative detention due to the exigent nature of the risk presented by the alleged conduct. The court in Dolly, supra, 40 Cal.4th 458, continued withits analysis and concludedthatcalls placed through the 911 system wereentitled to some weight because the caller faces a risk that police will be able to discover the caller's identity. Thus, such a call is entitled to greater consideration than the generic anonymoustip. (/d. at p. 467.) B. Analysis Brownargues that the "anonymous"call, together with the deputy's observations does not provide reasonable suspicion to justify a detention. Wedisagree. First, as Brown acknowledges, "the 911 call concerning a fight was morereliable than a truly anonymoustip becausethe dispatcher knew the location ofthe call and could hear some signs of an argument over the phone." Indeed, not only did the caller provide his own precise location, it is clear, at least at the time of the motion to suppress that defense counsel knew the identity of the caller, because counselidentified the caller in the points and authorities filed in the reply papers. Thecall in this case was completely different from the anonymous calls in J.L, supra, 529 US. 261 and Alabama v. White, supra, 496 U.S. 325. Here an identified citizen called and reported potentially violent activity taking place outside his home. Activity the dispatcher could hear. The Sheriff was entitled to presumethecaller to be reliable and the fact that sounds from the fight were audible on the recording addedtothereliability of the report. Brownargues that since the deputy did not personally hearthe call the deputy could not personally assess thereliability of the informant, thus the deputy could notrely 7 on it. Understandably Browncites no authority for the proposition that an officer, acting on directions from a dispatcher, must personally assess the reliability of the person who made the original 911 report. In this case the deputy arrived within three minutes of the citizen's call. The record showsthecall was entitled to greater weight than an anonymoustip andthat it - reported potential violent activity involving a firearm. Thus, similar to the reports in Dolly, supra, 40 Cal.4th at page 464 and Wells, supra, 38 Cal.4th at page 1083, the report in the instant case was entitled to be deemed reliable observations of a percipient witness. The deputy wasentitled to act on the dispatcher's information. Whenthe deputy arrived he found Brown leaving the exact location of the _ reported fight. Brown did not respondto the deputy's questions when he passed him. As the record showsthe deputy became suspicious and was concernedthat since a firearm had been reported, Brown may have been injured or involved in the fight. | Uponleaving thealley, after Brown had doneso, the deputy discovered Brown's car parked alongthe side of the road with the brake lights on. This discovery heightened the deputy's suspicions as well as concerns for Brown's safety. As the phrase was used in Terry v. Ohio, supra, 392 U.S.at page 19, the officer had sufficient facts to support reasonable suspicion that "criminal activity may be afoot." We conclude the deputy had sufficient information to justify detaining Brown at the point he observed Brown's car parked outside the alley. Il WHEN WASBROWNDETAINED? Brownasserts he was detained the momentthe deputy turned on the overhead lights on the patrol car, even though Brown had previously stopped on his own. Brown relies primarily on the opinion of the Sixth District Court ofAppeal in Bailey, supra, 176 Cal.App.3d 402. There a divided panel ofthe court concluded that: "A reasonable person to whomtheredlight from a vehicle is directed would be expectedto recognize the signal to stop or otherwise be available to the officer. Any reasonable person ina similar situation would expectthat if he drove off, the officer would respond by | following with red light on and siren soundingin order to accomplish control of the individual.” (/d. at p. 406.) | The dissent in Bailey acknowledged that when a person yieldsto a display of emergencylights, that the person has been seized. The dissent noted, however, there was no evidence the defendant yielded to the show of authority as the defendant in that case was already stopped without any reference to police action. (Bailey, supra, 176 Cal.App.3d at pp. 407-408 (dis. opn. of Agliano, J.).) Since the decision in Bailey, supra, 176 Cal.App.3d 402, the Sixth District has somewhatnarrowedor distinguished its holding. In People v. Perez (1989) 211 Cal.App.3d 1492, 1495-1496 (Perez), the dissenting justice in Bailey was the author of the unanimousopinionfor the court. There the court dealt with a case where the police did not turn on the red lights when approaching a stopped car. Instead, the police used their spotlight and high beamsto illuminate the stopped vehicle. The court observed: 9 "Unlike Bailey, the officer here did not activate the vehicle's emergency lights; rather, he turned on the high beams and spotlights only. These differences are substantial because the conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he wasnotfree to leave. While the use ofhigh beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such scrutiny does not amountto a detention." (/d. at p. 1496.) Thebasic thrust of the analysis in Bailey is that red lights are a showingthat police - will chase you if youdo not remain stopped. The analysis does not take into account, as did the dissent, that there needs to be some evidence that the person yielded to that show of authority. In the case of a stopped vehicle approached by police, we believe there must be something more than merely activating the red lights to accomplish a detention, - because, as the majority in Bailey, supra, 176 Cal_App.3d 402 acknowledged,ifyou do not yield, police may chase you. After Bailey, supra, 176 Cal.App.3d 402 and Perez, supra, 211 Cal.App.3d 1492 were decided, the U.S. Supreme Court decided California v. Hodari D. (1991) 499 U.S. 621 (Hodari D.). In that case, police officers wearingjackets which displayed the word "Police" approached a group of young males. (/d. at p. 622.) Upon seeing the approaching officers the group moved away. Police called out to the group that they were police officers and demanded the young men to stop. Notwithstandingtheofficer's clear showing of authority and their demandsthat the group stop, Hodari D. took flight. Police gave chase andjust prior to being tackled by a police officer, Hodari jettisoned a _ package containing narcotics. Ud. at pp. 622-623.) Thus, the issue before the court was 10 when wasthe defendant seized. The state appellate court held, consistent with Bailey that _the defendant was seized whenthe officers made their unequivocal demandsthathe stop. Since the state court found there was not reasonable suspicion to detain Hodari D.at the time of the demand,the state court concluded the narcotics were foundas the result of an unlawful seizure. The high court reversed, concluding that a mere showingofauthority is not enough to constitute a seizure. Rather, the court held that a seizure under the Fourth Amendment only occurs when a personis physically prevented from leaving, or whenthe person yields to a showingofpolice authority. (Hodari D., supra, at pp. 626- 629.) | Wedisagree with the analysis of the majority in Bailey, supra, 176 Cal.App.3d 402 and agree with the dissenting opinion in that case. We recognize the court's efforts in Perez, supra, 211 Cal.App.3d 1492 to distinguish Bailey, but respectfully reject the notion that there is a material difference betweenthesituation in which a police car pulls in behind a stopped car andactivates red lights and one in which the samecar uses high beamsand spotlights. In both cases there is an apparent showing ofpolice presence andpolice interest in the occupants ofthe stopped vehicle. In both instancesthereis a clearlikelihood that police will give chase if the person drives off. However, as the court in Hodari D., supra, 499 U.S. 621 has madeclear,itis still necessary to find that citizen yielded to that show of authority. As young Hodari discovered, police will give chase, but mere demands, or even pursuit are not seizures until the citizen accepts the command,either direct or implied, or whenthepolice succeed in restraining that person. 11 Applying Hodari D., supra, 499 U.S. 621, to the case before us, the record supports the trial court's finding that Brown wasnot stopped by police nor was he detained by the deputy until after the deputy approached the car and immediately observed clear indications ofintoxication. In any event, the deputy had reasonable suspicion of criminal activity as soon as he pulled his car to a stop behind Brown's car. Thetrial court correctly denied the motion to suppress. DISPOSITION The judgmentis affirmed. HUFFMAN,Acting P.J. WE CONCUR: McINTYRE,J. O'ROURKE,J. 12