Evidence seized as a result of an unlawful detention must be suppressed

THE PEOPLE, Plaintiff and Respondent, v. OSCAR CUADRA, Defendant and Appellant. (Cal. Ct. App., Nov. 5, 2021, No. B310554) 2021 WL 5149775, at *1–3

Summary:  Cuadra was charged with possession of a firearm by a felon in violation of Penal Code section 29800, subdivision (a)(1).   Before pleading no contest, Cuadra  filed a motion to suppress the firearm evidence under Penal Code section 1538.5 as the fruit of an unlawful detention. On appeal Cuadra  argued that the trial court erred when it denied the motion.The Court of Appeal agreed and reversed.

Facts:

On June 3, 2020, Deputy Zeas and his partner drove their patrol car into the Destiny Inn parking lot in the City of Commerce and stopped next to a parked car Cuadra was standing near. Due to Black Lives Matter protests, there was a curfew in effect. Deputy Zeas asked Cuadra if he was aware of the curfew. and Cuadra said no. The curfew did not apply to private property, where Cuadra was standing.

Deputy Zeas then asked Cuadra if he was on parole or probation. Cuadra said he was on probation. Deputy Zeas testified that “at that point” he decided to detain appellant. The two officers exited their patrol car and as Deputy Zeas testified, “at that point … we asked him to walk over to the hood of our patrol vehicle.” Cuadra then raised his hands and started to step backward away from the patrol car, asking why the officers were “attempting to detain” him when he had done nothing wrong. It was after he raised his hands in response to Deputy Zeas that Deputy Zeas saw an unidentified “bulge” in appellant’s right front pants pocket that was consistent with the shape of a firearm. Before Deputy Zeas could react to what he just observed, Cuadra “spontaneously” told the deputies he had a gun.

Deputy Zeas ordered Cuadra to the ground. Cuadra  complied and was detained. Deputy Zeas performed a pat down search and recovered a loaded .38 caliber revolver from appellant’s right front pants pocket.

After entertaining argument, the trial court denied the motion. This appeal followed.

Review of a Motion to Suppress Evidence

“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.’ ” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 232; accord, People v. Brown (2015) 61 Cal.4th 968, 975 (Brown).)

Under the Fourth Amendment there are three distinct police encounters, each requiring a different level of suspicion (1) arrest, which must be supported by probable cause; (2) brief investigatory stops, which must be supported by reasonable articulable suspicion; and (3) brief encounters between police and citizens, which require no objective justification. (U.S. v Brown (2005) 401 F.3d 588, 592; Terry v. Ohio (1968) 392 U.S. 1.) It is well settled that “[a]n officer may approach a person in a public place and ask if the person is willing to answer questions…. Such consensual encounters present no constitutional concerns and do not require justification.” (Brown, supra, 61 Cal.4th at p. 974, citing Florida v. Bostick (1991) 501 U.S. 429, 434.)

A consensual encounter may ripen into a seizure for Fourth Amendment purposes “ ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” (Brown, supra, 61 Cal.4th at p. 974, quoting Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.) “In situations involving a show of authority, a person is seized ‘if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” ’ or ‘ “otherwise terminate the encounter.” ’ ” (Brown, at p. 974; Florida v. Bostick, supra, 501 U.S. at pp. 437–438 [A seizure of a person occurs the moment a reasonable person would not have felt free to leave without responding or yielding to the officer.].) “The dispositive question is whether, ‘ “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave …” [citation].’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 341.) “The test is ‘objective,’ not subjective; it looks to ‘the intent of the police as objectively manifested’ to the person confronted. Accordingly, an ‘officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant ….’ ” (Ibid., italics added.)

A seizure may occur by a show of authority alone without the use of physical force, “but there is no seizure without actual submission.” (Brendlin v. California (2007) 551 U.S. 249, 254, italics added.) The test for existence of a show of authority is an objective one: whether the officer’s words and actions would have conveyed to a reasonable person that he was being ordered to restrict his movement. (California v. Hodari D. (1991) 499 U.S. 621, 628.)

An officer’s instructions to put one’s hands on the hood of a car has been deemed a show of authority. (U.S. v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1061; U.S. v. Brown, supra, 401 F.3d at p. 595.) Here,  Deputy Zeas began the detention process when he “asked” appellant to come toward the hood of the patrol car. Hearing those words, no reasonable person would feel free to leave. It is objectively apparent the officers intended to detain and frisk appellant. Cuadra, by his question, reasonably understood that he was being detained.

Raising one’s hands and stepping back is a universally acknowledged submission to authority and an  accepted way to reassure someone who is armed and confronting you that you pose no threat because you have no weapon in hand. By putting up both hands Cuadra yielded to the officers’ show of authority. Deputy Zeas testified that “when he raised his hands in the air, that revealed a bulge in his front right pants pocket.”

No probable cause for the arrest if not for the illegal detention

Under Terry v. Ohio, there must be an objective manifestation of a reasonable articulable suspicion that criminal activity is afoot and that appellant was a person engaged in, or about to engage in, criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230.) Here, all  the officers knew was that appellant was standing next to a car in a motel parking lot at 2:00 a.m. Without knowing whether defendant’s grant of probation included a search condition, the officers could not ultimately stop and search him as they did. (In re Jaime P. (2006) 40 Cal.4th 128, 139.)

Under the totality of circumstances, Cuadra submitted to a show of authority and his detention was not founded on reasonable suspicion, consent, or probable cause to arrest. The stop was unconstitutional muster and the revolver seized as a result of the search should have been suppressed.