Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC762835
McAdams, J.
Defendant Herberger was charged with unauthorized use of a vehicle, a felony, and driving with a suspended or revoked license, a misdemeanor. (Veh. Code, § 10851, subd. (a), 14601.1, subd. (a).) The superior court granted defendant’s motion to suppress evidence and dismissed the case pursuant to Penal Code section 1385. The District Attorney appeals the dismissal pursuant to Penal Code section 1238, subdivisions (a)(1) and (a)(8). The People argue that the superior court erred in finding the police officer’s detention of defendant unlawful, and in suppressing observations made by the police officer before the detention occurred. They also challenge defendant’s standing to bring a section 1538.5 motion. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
The facts are drawn from the motion to suppress which was heard on July 2, 2007.
On April 6, 2007, at approximately 4:00 a.m., Milpitas Police Officer Duong Nguyen was patrolling his usual beat in the area of South Temple and Canton Streets. This is a residential neighborhood, and there had been auto thefts, residential burglary and vandalism in the area. Officer Nguyen was in uniform but driving an unmarked patrol car.
Officer Nguyen was traveling north bound on South Temple when he saw a green Corolla traveling eastbound on Canton Street. Officer Nguyen followed the car and ran its license plate. He did this as a matter of routine, and at the time he ran the license plate, he did not suspect the driver of any criminal activity. At this point, he could not discern the gender or race of the driver. The check came back with the information that the car had not been reported stolen, and that the registered owner’s surname was Duong, which Officer Nguyen recognized as a Vietnamese name.
Officer Nguyen continued to follow the vehicle, and passed it when it pulled over to the curb. As he went by, Officer Nguyen slowed down and glanced over at the driver; he saw that the driver was a Caucasian male. Officer Nguyen continued on. The street on which he was driving changed names and looped around, and the officer soon came upon the same vehicle with the same driver now parked on a different street. Nguyen maneuvered his car so that he could park it on the opposite side of the street from the Corolla. He decided to contact the driver to find out more, based on the suspicions he had “because the registration comes back to a Vietnamese last name.”
The officer got out of his car and the driver of the Corolla got out of his. Nguyen contacted the driver right in front of the front end of the Corolla. At this time, the officer had not seen the inside of the Corolla. In response to the court’s request that the prosecutor specifically “focus on the exact words” the officer used “when he asked for his I.D.,” Officer Nguyen testified: “I identified myself, and I told him that I’m in the area working, patrolling the neighborhood, because due to previous crime … within the area, and I asked him for his driver’s license.” In response to the court’s further question, Officer Nguyen reiterated that he “asked [the driver] if he had any identification with him” and the driver said “Yes.” Nguyen then said, “Can I see it, please?” The driver (defendant) gave it willingly.
The questioning was conducted for both sides by certified law clerks under the supervision of the district attorney and public defender.
In response to the defense law clerk’s question on cross-examination, Nguyen testified that he asked defendant if the vehicle was his, and then asked for identification.
Before he checked for warrants, Nguyen asked defendant about the ownership of the vehicle. Defendant said it belonged to a friend. The officer asked who his friend was and defendant said he couldn’t remember the friend’s name. After this conversation, he ran a check for warrants using the driver’s license and learned that defendant had an outstanding warrant. Once the warrant was confirmed, he arrested defendant. He never gave defendant back his license.
Nguyen did not notice anything about the interior of the Corolla prior to running the warrant. Then, the officer saw that “at the steering column … two end[s] of the electrical wire leads [were] protruding with a starter switch on it beside it. [sic]” From his experience and training in the auto theft task force, the officer knew this was a way to start a car without using a key. Nguyen asked defendant about this, and defendant said he got it in that condition from his friend.
After reviewing the parties’ memoranda of points and authorities, the court entertained argument. The prosecutor argued that nothing escalated the consensual encounter to a detention. “[T]he cop parked across the street. There were no sirens. There were no lights. There wasn’t the presence of other officers. There wasn’t a weapon drawn. He didn’t shout to get the defendant’s attention. He merely walked across the street, initiated contact with the defendant, and the defendant responded to that … contact, and at that point they had a conversation. The officer never requested that the defendant stay. The defendant never requested that he should be allowed to leave. … There is no detention.”
The defense argued that the officer “targeted Mr. Herberger because he was Caucasian, and the registered owner of the car was Asian. He followed him, circled the block, made a u-turn; all with the intent of initiating contact with my client. [¶] Under [People v.] Castaneda [(1995) 35 Cal.App.4th 1222], the initial … asking for the identification did not constitute a detention. But once Mr. Herberger complied with the request and submitted his identification to the officer, then the detention was created.”
The court ruled: “First of all, I do want to simply note that it is offensive to suggest that a detention is justified solely because an individual is driving a vehicle that is registered to someone of a different race. [¶] And, that said, assuming that the officer’s initial contact with the defendant was consensual, the court does find that under the circumstances of that instant encounter a reasonable person would not have felt free to leave once the officer asked for and the defendant has surrendered his driver’s license. Accordingly, the detention was illegal, and the motion is granted.” Asked by the prosecutor to clarify “what evidence the court is suppressing,” the court stated: “Everything in the car related [sic]. The detention occurred once the license was surrendered. So all of the observations after that. So, the car-related charges would be the 10851, and I believe the 14601. But certainly it does not extend to the matter for which there was an outstanding warrant. That’s okay. Okay?” The prosecutor did not ask for further clarification.
DISCUSSION
On appeal, the District Attorney contends that the police contact was a consensual encounter, for which no reasonable suspicion was required, and thus there was no violation of defendant’s Fourth Amendment rights. She further contends that even if defendant was detained when he surrendered his identification to Officer Nguyen, by that time the officer had already developed reasonable suspicion to justify a detention. Alternatively, assuming the detention was illegal, that the trial court improperly suppressed evidence that was gathered before the illegal detention occurred: (1) the identity of the registered owner, disclosed by Officer Nguyen’s initial license plate check; and (2) defendant’s presence behind the wheel of the car. Finally, in a footnote, the District Attorney argues that “[t]o the extent there was any evidence related to or in the car to suppress, the respondent failed to establish at the hearing that he had standing to object to its seizure.”
1. Applicable Legal Principles
a. Standard of Review
On appeal from the grant or denial of a suppression motion, “we review the evidence in a light favorable to the trial court’s ruling, adopt those express and implied findings of fact that are supported by substantial evidence, and independently determine whether those findings support the court’s legal conclusion that the search was reasonable [or unreasonable] under the Fourth Amendment. [Citations.] The standard of review recognizes that it is the exclusive province of the trial court to make the factual findings and credibility determinations that support a ruling and the legal theory underlying it.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198; People v. Ratliff (1986) 41 Cal.3d 675, 686.)
b. Consensual Encounters vs. Detentions
“[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16; Florida v. Royer (1983) 460 U.S. 491, 497.) An officer does not implicate Fourth Amendment concerns “by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” (Florida v. Royer, at p. 497.) An officer may talk to anyone he encounters while regularly performing his duties. (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227 (Castaneda).) Thus, an officer may ask questions or request identification even without a reasonable suspicion of criminal activity. (People v. Grant (1990) 217 Cal.App.3d 1451, 1461.) “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” (INS v. Delgado (1984) 466 U.S. 210, 216.) “Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say the questioning resulted in a detention under the Fourth Amendment.” (Ibid.)
However, when an officer “even briefly detains an individual and restrains that person’s right to walk away,” the limitations of the Fourth Amendment apply. (United States v. Sugrim (2d Cir. 1984) 732 F.2d 25, 28.) “ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, fn. omitted, quoting from United States v. Mendenhall (1980) 446 U.S. 544, 554.) Retention of a person’s identification is one such circumstance. (Castaneda, supra, 35 Cal.App.4th at p. 1227 [“Although Castaneda was not restrained by the officer asking for identification, once Castaneda complied with his request and submitted his identification card to the officers, a reasonable person would not have felt free to leave”]; see also U.S. v. Sanchez (10th Cir. 1996) 89 F.3d 715, 718 [“Courts have identified several factors that could lead a reasonable innocent person to believe that he is not free to disregard the police officer, including … prolonged retention of a person’s personal effects such as identification and plane or bus tickets”].)
c. Justification for a Detention
“[T]he temporary detention of a person for the purpose of investigating possible criminal activity may … be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (People v. Souza (1994) 9 Cal.4th 224, 230.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Id. at p. 231.)
2. Analysis
a. The Detention
We agree with the District Attorney, and the trial court, that the initial contact between Officer Nguyen and defendant was a consensual encounter requiring no justification. However, we reject the People’s suggestion that in order to qualify as a detention, the surrender of a driver’s license must have been coerced. Caselaw, including the cases cited by the People, supports the view that when a police officer asks for a person’s driver’s license, that person surrenders it, and the officer retains it indefinitely, the circumstances may demonstrate a sufficient show of authority such that a reasonable innocent person would not feel free to leave. (Castaneda, supra, 35 Cal.App.4th at p. 1227; In re Tony C. (1978)21 Cal.3d 888, 895[“a detention occurs if the suspect is not free to leave at will - if he is kept in the officer’s presence by physical restraint, threat of force, or assertion of authority” (italics added)], superseded on other grounds by Cal. Const., art. 1, § 28; People v. Jones (1979) 96 Cal.App.3d 820, 826 [same, quoting Tony C.]; People v. Rico (1979) 97 Cal.App.3d 124, 129 [show of authority].) Under the applicable legal principles discussed above, we conclude that totality of the circumstances support a finding that defendant was detained when, at 4:00 a.m., and while his car was lawfully parked on a residential street, he surrendered his driver’s license to Officer Nguyen and Officer Nguyen retained it.
Next, the District Attorney argues that even if defendant was detained when the officer took his license, by that time Officer Nguyen had developed reasonable suspicion to justify a detention to investigate a car theft under the totality of the following circumstances: Officer Nguyen observed a Caucasian driving a car registered to a person with a Vietnamese surname, at 4 o’clock in the morning in a neighborhood where, the officer knew, residential burglaries, auto thefts and vandalism had been committed. Officer Nguyen “merely approached respondent, identified himself as a police officer, and explained that he was in the neighborhood due to crime in the area. He then asked respondent questions regarding the car he had been driving. When the respondent was unable to identify the ‘friend’ from whom he had obtained the car, the officer asked if he could see his identification which the respondent willingly supplied.”
If the trial court had found the facts to be as the People describe them above, a different case would be presented. But their argument proceeds from a factual premise that was rejected by the trial court: that Officer Nguyen learned all the information he needed to develop a reasonable suspicion of car theft, before he detained defendant. The trial court implicitly found otherwise, and as an appellate court, we are not at liberty to adopt the People’s view of the facts. “ ‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.’ [Citation.] If factual findings are unclear, the appellate court must infer ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ ” (People v. Middleton (2005) 131 Cal.App.4th 732, 738.)
Here, Officer Nguyen testified, under close questioning at the direction of the court, and by the court, that after explaining to defendant the reason for making contact, he immediately asked for and received defendant’s driver’s license. Thus, notwithstanding Officer Nguyen’s other contradictory testimony, the trial court evidently accepted this evidence as credible and was entitled to conclude from it that, at the time Officer Nguyen secured possession of defendant’s license, he had not yet questioned defendant about the car. Therefore, he knew only that, at 4:00 a.m., a Caucasian driving a green Corolla that had not been reported stolen was registered to a person with a Vietnamese surname; and that the car was parked on a residential street in a neighborhood where there had been, over some period of time, some number of residential burglaries, auto thefts and vandalism. The trial court specifically discounted the idea that the discrepancy between the driver’s race and the registered owner’s assumed ethnicity contributed anything reasonably suspicious to the justification equation. In our view, the trial court’s implied factual findings are supported by substantial evidence and, in view of those findings, the court did not err in concluding that the defendant’s detention was not justified by the hour of the day coupled with the fact that crime had occurred in the neighborhood. The court properly granted defendant’s motion to suppress.
In light of our conclusion that the trial court’s implied findings are supported by substantial evidence, we do not address defendant’s complaint that the defense law clerk rendered ineffective assistance of counsel by failing to impeach Officer Nguyen with his preliminary hearing testimony that he did not ask defendant about his connection to the car until after he had asked for and received defendant’s identification.
b. The Suppression of Evidence
As we understand it, the District Attorney argues that the trial court suppressed not only any evidence gathered after the illegal detention that was car related, but also any evidence gathered prior to the detention, and that this was error. The evidence gathered prior to the detention consists of (1) the officer’s knowledge that the Corolla was registered to a person surnamed Duong, obtained through the initial license check; and (2) the officer’s observation of a male Caucasian driving the car.
We do not understand the court’s ruling as suppressing any evidence that was gathered prior to defendant’s surrender of his driver’s license to Officer Nguyen, who then kept it. In our view, the court’s ruling was unambiguous; to be suppressed was all “car related” evidence that was gathered after the detention. Therefore, evidence that was not “car related” – that is, knowledge of the warrant for defendant’s arrest on unrelated charges – and evidence gathered before the detention occurred – i.e., all observations made prior to the surrender of defendant’s license to Officer Nguyen – was not suppressed.
It is well-established that the only evidence subject to suppression is evidence that qualifies as “ ‘fruit of the poisonous tree.’ ” (Wong Sun v. United States (1963) 371 U.S. 471, 488 (Wong Sun).) In fact, not even all evidence seized after an illegal arrest or detention must be suppressed; rather, the correct inquiry is “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Ibid.) We see no basis in the record to conclude that the court was unaware of this basic tenet of search and seizure law when it made its ruling. In fact, Wong Sun was cited to the trial court in defendant’s legal memoranda. The suppression order stands.
c. Standing
Relying primarily on People v. Melnyk (1992) 4 Cal.App.4th 1532 (Melnyk), the District Attorney argues that “[s]ince the defendant was driving a stolen car, he had no expectation of privacy in that stolen car” and therefore “there was no ‘fruit of the poisonous tree’ to suppress in this case.” We disagree.
It is true that Melnyk holds that a car thief lacks standing to attack an illegal search and seizure of the stolen car, and seek suppression of evidence obtained as a result of that search and seizure. However, Melnyk is inapposite here, since defendant does not challenge the search and seizure of the Corolla. Defendant here challenges the seizure of his person, and seeks suppression of evidence obtained as a result of his detention – i.e., “all observations of the officer, any statements by the defendant, and any other fruits” of his unlawful detention, made after defendant surrendered his driver’s license to Officer Nguyen. This case is therefore governed by the rule of People v. Glick (1988) 203 Cal.App.3d 796 (Glick), which held that the driver of a stolen car has standing to challenge his detention as unreasonable under the Fourth Amendment. The Glick court reasoned that “[a]ll drivers on public highways, even those who are subsequently determined to be driving stolen vehicles, have a protected privacy interest to be free from unreasonable seizures. [Citations.] This right is separate from any expectation of privacy the driver has in the car or its contents [citations], and is personal to the defendant the same as if he were walking along a public street. We conclude that any driver may question the legality of the initial police detention.” (Id. at pp. 799-800.) While the majority opinion in Melnyk did disagree with Glick’s holding, we agree with the concurring justice in that case, who observed in his separate opinion that there was no need to do so inasmuch as Glick “expressly recognized that an individual’s interest in freedom of movement is disparate from an expectation of privacy in a dwelling or automobile.” (Melnyk, supra, 4 Cal.App.4th p. 1535, fn. 1 (Wallin, J. concurring).) As Justice Wallin further observed: “If the rule were otherwise, the deterrent effect of the Fourth Amendment would be nil. Unfounded detentions would increase exponentially. Because most warrantless searches are aimed at drugs or stolen property, the police would gladly sacrifice other fruit if they could use all seized stolen property as evidence. Usually, not much more is needed to convict.” (Id. at p. 1535, fn. 2.) We conclude that defendant has standing to challenge the legality of his detention and to move for suppression of all fruits thereof.
CONCLUSION
Substantial evidence supports the trial court’s implied factual finding that Officer Nguyen did not question defendant about his connection to the Corolla until after defendant surrendered his license to Officer Nguyen. Defendant was detained when defendant surrendered his license to Officer Nguyen and Officer Nguyen retained possession of it. That detention was not justified by Officer Nguyen’s knowledge that the car, while not reported stolen, was registered to a person with a Vietnamese surname; his observation that the driver was a Caucasian male; the hour of the day (4:00 a.m.); and the fact that the car was parked on a residential street in a neighborhood which had suffered some undetermined number of burglaries, car thefts and vandalism at some undetermined point in time. The trial court did not order suppression of any evidence gathered before the detention. Defendant has standing to challenge the legality of his detention. Under these circumstances, the trial court did not err in granting defendant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.