Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF0250) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6.) Reversed with directions. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
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After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant Matthew Jacobs pleaded guilty to possession of a firearm by a felon (§ 29800, subd. (a)(1)), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)), carrying a loaded unregistered firearm in public (§ 25850, subds. (a), (c)(6)), carrying a loaded firearm in public (§ 25850, subds. (a)(c)(7)), and false representation to a police officer (§ 148.9, subd. (a)). The court suspended imposition of sentence and imposed three years formal probation, which included a condition of 364 days in county jail.
All statutory references are to the Penal Code.
Defendant was in a secluded neighborhood in Orange County, knocking on doors and asking residents for food. One resident who interacted with defendant felt he was suspicious and decided to call 911. The police approached defendant, and after a civil conversation, asked to search defendant for weapons. Defendant refused. The officer warned him to comply or he would be arrested. Defendant then admitted he had a gun. The officer searched defendant and confiscated the gun without incident.
Defendant contends the search of his person violated his Fourth Amendment right against unreasonable searches and seizures, and that the court erred in denying his suppression motion. We agree. The officer did not have the "'particular and objective basis' for suspecting legal wrongdoing" necessary to form reasonable suspicion to detain and search defendant. (U.S. v. Arvizu (2002) 534 U.S. 266, 273.) We reverse.
On a January morning in 2018, defendant was walking on Silverado Canyon Road in Orange County asking for food from neighborhood residents. A resident called 911 to report a "suspicious guy" who came to her door asking for food. She claimed defendant looked "creepy" and "disoriented" and said he became "disgruntled" when she refused him food. An Orange County Deputy Sheriff responded to the call, arriving on the scene approximately 10 minutes later. Dashboard camera video from the deputy's police vehicle recorded the following conversation with defendant.
"[Deputy]: Were you down the hill earlier, man?
"[Defendant]: As in?
"[Deputy]: Knocking on doors?
"[Defendant]: No, I don't disturb people ... sir.
"[Deputy]: Because they described you perfectly, dude.
"[Defendant]: I haven't been knocking on doors, sir.
"[Deputy]: Be honest. Right now it's nothing. You've been knocking on doors, asking for food?
"[Defendant]: I was asking for food, that was all.
"[Defendant]: I asked a couple people ... I didn't knock on any doors, I'm not going onto people's property.
"[Deputy]: Alright. Because apparently you got pissed off at the lady, and she ended up calling.
"[Defendant]: I didn't, sir. I wished them well. I told them to have a nice day. What lady? I don't know what you mean, sir.
"[Deputy]: What's your name, man?
"[Defendant]: I'm not angry at anyone, sir
"[Deputy]: Okay. What's your name?
"[Deputy]: Robert what?
"[Deputy]: Do you have any ID on you, Robert?
"[Defendant]: No, sir.
"[Deputy]: So that food doesn't get spoiled, I'm just gonna make sure you have no weapons, Robert. Put the food inside the bag so that way it doesn't get spoiled or dirty. I'm gonna do a quick check.
"[Defendant]: Sir, please just let me go.
"[Deputy]: Robert. Either comply, or you're gonna get arrested.
"[Defendant]: I have a gun in my pocket.
"[Deputy]: Right now ...
"[Defendant]: I have a gun in my pocket, to tell you the truth.
"[Defendant]: I wasn't trying to harm anybody ...
"[Deputy]: Why do you have a gun in your pocket?
"[Defendant]: I'm getting back into the woods to find my father.
The "it" here seems to refer to the food. There is no suggestion in the record that he was holding the gun at that point.
At this point, the deputy searched defendant and found a gun inside his jacket and spare ammunition in his pocket. Defendant was subsequently arrested.
Prior to trial, defendant filed a motion to suppress all of the evidence used against him under section 1538.5. The court denied the motion. Afterward, defendant pleaded guilty and filed a notice of appeal. (See § 1538.5, subd. (m) ["A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence"].)
The People admit that defendant was detained when the deputy said, "Either comply or you're gonna get arrested." We conclude the detention was not supported by reasonable suspicion, nor can the search be salvaged under the inevitable discovery doctrine. Accordingly, the court erred in denying defendant's suppression motion.
When reviewing a motion to suppress evidence, "all presumptions are in favor of the trial court's factual findings, whether express or implied, where supported by substantial evidence, and we review de novo the facts most favorable to the People to determine whether the officer's conduct in performing the [detention] was reasonable under the Fourth Amendment." (People v. Colbert (2007) 157 Cal.App.4th 1068, 1072.) Under de novo review, our court "may independently examine the legal issues in the case and is not bound by the ruling of the trial court. (California Country Club Homes Assn. v. City of Los Angeles (1993) 18 Cal.App.4th 1425, 1438.)
"The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." (U.S. v. Arvizu, supra, 534 U.S. at p. 273.) As a result, "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." (U.S. v. Sokolow (1989) 490 U.S. 1, 7.) But "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." (United States v. Cortez (1981) 449 U.S. 411, 417.)
The People here attempt to establish reasonable suspicion on the following articulable facts: appellant was not a resident of the neighborhood, the reporting party described him as disoriented and creepy, and he did not have identification. That's it. What is the criminal activity that the deputy reasonably suspected was afoot? The People's brief does not even attempt to answer this crucial question. So far as we can determine, there is not even a hint of criminality on these facts. Defendant was simply a homeless person asking for food in a neighborhood unaccustomed to panhandlers. The detention was patently unjustified.
So far as the record reveals, there was no law against panhandling in the neighborhood. --------
The trial court reasoned that the search was reasonable because the officer did not search defendant until after he admitted having a gun. According to the court, once defendant admitted having a gun, the officer had reasonable suspicion to search him. The flaw in this reasoning is that defendant only admitted having a gun because the officer had illegally detained him, and, at that point, the weapon search was unavoidable. It is best not to surprise armed officers with a gun. Admitting to possessing a gun was a necessary safety precaution once the officer had made it clear that the search was going to happen. The knowledge that defendant had a gun, therefore, was a direct product of an illegal detention. The subsequent search was fruit of the poisonous tree. (See Segura v. United States (1984) 468 U.S. 796, 804 ["the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, [citation], but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.' [Citation.] It 'extends as well to the indirect as the direct products' of unconstitutional conduct"].)
The People alternatively argue that the evidence can be salvaged under the inevitable discovery doctrine. The inevitable discovery doctrine allows admission of evidence that would otherwise be suppressed "if the government can prove that the evidence would have been obtained inevitably, and, therefore, would have been admitted regardless of any overreaching by the police." (Nix v. Williams (1984) 467 U.S. 431, 447.) "The inevitable discovery exception requires the court '"to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred."'" (People v. Hughston (2008) 168 Cal.App.4th 1062, 1072.)
According to the People, defendant's gun would have inevitably been discovered because he gave the deputy a fake name, which the deputy intended to investigate, and which would have resulted in an arrest under section 148.9, subdivision (a). Aside from the practical problems with this argument—i.e., defendant may have simply walked away, preventing any search—there is no evidence defendant actually violated section 148.9. That section makes it a misdemeanor to misidentify oneself to a peace officer "upon a lawful detention or arrest of the person." (Id., subd. (a).) When defendant gave a false name, he had not been detained yet. And even if that misrepresentation carried over to the detention, we have already determined that the detention was not lawful. Accordingly, there was no basis upon which to arrest and search defendant for a violation of section 148.9, and thus discovery of the gun was evitable.
The judgment is reversed. The matter is remanded to the trial court with directions to permit defendant to withdraw his guilty plea. The court is further directed to vacate its order denying the suppression motion and to enter a new order suppressing any evidence obtained as a result of the unlawful detention, including the firearm and the ammunition.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.