Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. SCR-530357
Kline, P.J.
Respondents Filberto Hernandez and Daniel DeMarco were on July 30, 2008 (all subsequent dates are in that year unless otherwise indicated) charged by information with possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine. (Id., § 11379.)
The parties moved to set aside the information on the ground that they had been committed without reasonable or probable cause (Pen. Code, § 995, subd. (a)(2)(B) ) and to suppress evidence (§ 1538.5). After a hearing on December 3 and 4, the court granted the motion to suppress and set the matter for trial. The People were unable to proceed due to the granting of the suppression motion and the Court, therefore, dismissed the charges on December 8.
All statutory references are to the Penal Code unless otherwise indicated.
This timely appeal was filed by the People on December 10 (§ 1238, subd. (a)(7)).
FACTS
The facts are taken from the testimony at the hearing on December 3rd and 4th on respondents’ motions to set aside the information and suppress evidence.
On February 19, Special Agent Bryan Andreozzi of the Federal Drug Enforcement Agency (DEA) and three other DEA Special Agents he supervised—Seth McMullen, Mark Macanga, and Josh Craven – situated themselves in several locations in the parking lot of Kohl’s department store in Petaluma. The agents anticipated that a sale of five pounds of methamphetamine was scheduled to take place at this location between 1:30 and 2:00 p.m. The expected transaction had been arranged by a confidential source (CS) with a seller named Cervantes, also known as “Allegre.” Agent McMullen testified that during a recorded conversation Cervantes told the CS he was coming north and would stop in Los Angeles and Napa on the way to Petaluma. McMullen told Agent Andreozzi he believed the drugs, which the CS understood to be methamphetamine, were coming from an unknown location, mentioning Fresno and Sacramento as possibilities, and would stop in Los Angeles and Napa before reaching Petaluma
At about 1:44 p.m., Andreozzi saw a red Mustang enter and drive through the Kohl’s parking lot while the driver and his passenger repeatedly moved their heads from side to side as though looking for someone. At some point, agent Macanga told Andreozzi that three individuals had alighted from the Mustang and walked toward Kohl’s, looking around as they walked. One of them, later identified as Cervantes, left the store, went to the CS’s vehicle, which was parked about 100 yards from the Mustang, entered the CS’s car and remained inside for about five minutes. Andreozzi was then told by Agent Craven that Cervantes was walking back toward the Mustang.
At about 2:30 p.m., Andreozzi saw a red or burgundy Hyundai enter the parking lot and drive past him. An “older gentleman, with silver to white hair” later identified as respondent DeMarco was driving and a “shorter individual of Hispanic descent,” who turned out to be respondent Hernandez, was a passenger. Both appeared to be looking for someone or for a parking spot. Andreozzi then lost sight of the car. Andreozzi then learned that the CS had contacted McMullen and told him that the drugs were in the area. Andreozzi was also told that the Hyundai had been rented in Los Angeles, which was among the several areas from which the agents believed the drugs might be coming.
Agent McMullen saw the Hyundai drive by his vehicle and park “nose to nose” with the Mustang. The passenger, Hernandez, left the car and walked toward the Mustang, but McMullen then lost sight of him, witnessing no exchange or other contact between occupants of the Hyundai and those of the Mustang. About three minutes after the Hyundai entered the lot it pulled out of its space and left the same way it had entered. At about that time, the CS and told McMullen the drugs were in one of the two vehicles but did not specify which one. McMullen broadcast this information on to the other agents.
Concluding it was “more than likely that the narcotics were in the Hyundai” than the Mustang, Andreozzi and Agent Macanga, who was in a separate vehicle, followed it for 10 or 15 minutes; they did not observe any traffic violations that would justify a stop, but were not looking for any because, as Andreozzi testified, “I don’t enforce traffic laws.” At some point Macanga phoned Andreozzi to tell him that the agents who followed the Mustang stopped and searched the vehicle and found no drugs. As a result of this information and the “totality of investigative events that tied the vehicles together,” Andreozzi concluded that the drugs must be in the Hyundai and he and Officer Macanga effectuated a traffic stop. Macanga activated his overhead lights and siren and pulled the Hyundai over from behind while Andreozzi pulled in front of the car to prevent escape. Officer Macanga took control of DeMarco, who was driving, and Andreozzi took control of Hernandez. Both officers were wearing ballistic vests that had “police” and “DEA” markings, and duty belts with a weapon and radio. Andreozzi asked whose vehicle he was driving and DeMarco said it was rented. When Andreozzi asked “if I can search the vehicle” DeMarco answered “no.” At that point DeMarco and Hernandez were both handcuffed behind their backs and placed against one of the vehicles, close to Andreozzi, Macanga and other law enforcement officers who showed up. Andreozzi did not in his testimony explain the reason for the handcuffing.
One of the options Andreozzi discussed with the other law enforcement officers as to “the best manner for getting a search of the vehicle” was bringing “a narcotics trained dog” to the scene. Andreozzi testified that after this option was brought up DeMarco, who was close by, indicated “that I could go ahead and search the vehicle.... [S]o I turned around to ensure that I heard him correctly and asked him again, ‘Are you telling me that I can search the vehicle?’ And he said yes.” Andreozzi had not placed his hands on DeMarco or drawn his weapon. A box containing five pounds of methamphetamine was found in the trunk.
PROCEEDINGS BELOW
Respondent Hernandez’s motion to suppress, which was joined in by respondent DeMarco, was initially based on the claims that the detentions were unlawful because they took place based on a “hunch” and beyond the time within which it was necessary for officers Andreozzi and Macanga to perform their legitimate investigative functions (see People v. Lingo (1970) 3 Cal.App.3d 661, 664-665), and that the unlawfulness vitiated any consent to search, which required suppression of the seized evidence. However, at the commencement of the hearing on the motion, counsel for DeMarco raised a new argument based on the opinion that had issued five weeks earlier in People v. Stier (2008) 168 Cal.App.4th 21 (Stier), a case involving facts remarkably similar to those in this case. The Stier court concluded that the trial court had erred in denying the motion to suppress because the prosecution did not establish a police officer lawfully detained the defendant by placing him in handcuffs and thereafter lawfully obtained his consent to be searched.
After a recess was called to provide the court, the district attorney, and counsel for Hernandez an opportunity to read Stier, the court heard arguments of defense counsel and the district attorney as to the meaning of the opinion and its applicability to this case. At the close of vigorous argument, the court observed that it had initially believed there was probable cause to search the Hyundai based on information that no drugs were found in the Mustang, but that as result of Stier its analysis had changed. As the court explained: “Stier clearly holds... that the inappropriate handcuffing at the time of the detention turns the detention, which would otherwise be lawful, into... an illegal arrest. And that makes it an illegal detention and therefore vitiates the legal authority to search after the detention is made. And that’s what Stier says... and on that basis, I’m finding that the search was the result of an illegal detention because of the handcuffing of the occupants of the car. And in that sense, Stier is on all fours with this case, and I am suppressing the methamphetamine that was located.”
DISCUSSION
The People contend that the trial court “misapprehended the analysis of the Stier opinion, misapplied it to the facts of this case and, as a result, was led into error.”
The standard of review of a ruling on a motion to suppress is well settled. “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354 at p. 362.)
We commence our analysis with a description of the facts and analysis in Stier, upon which the trial court focused.
At the suppression hearing, San Diego Police Officer Leahy testified that he and his partner, Officer Johnson, had been told by DEA agents that they had witnessed a narcotics transaction involving the occupants of a GMC truck. The agents gave the officers information identifying the drivers and the vehicle and its location and asked them to follow the truck in the hope of developing probable cause to stop it. While following the truck, Leahy noticed that the mudflaps were four inches too small and that a passenger was moving in a manner suggesting she was not wearing a seatbelt. For these reasons they stopped the truck. As the truck was being stopped, the front seat passenger, Renteria, alighted and began walking away. Officer Johnson stopped her for officer safety reasons, and asked for consent to search her person. She said she had narcotics in her pocket, and Johnson found the narcotics and relayed this information to Officer Leahy. (Stier, supra, 168 Cal.App.4th at pp. 24-25.)
Meanwhile, Leahy approached the truck and contacted the driver, Stier, to explain the reasons for the stop. Concerned about the narcotics found on Renteria and the welfare of the minor passenger in the back seat, Leahy asked Stier to get out of the truck so he could investigate further. “Leahy found Stier to be ‘very cooperative,’ ‘very easygoing,’ ‘very docile,’ ‘very polite,’ and ‘very mellow.’ In addition, Stier ‘did not appear to be nervous at all.’ However, when Stier got out of the truck, Leahy, who is six feet one inch or six feet two inches tall, was ‘taken aback’ by Stier’s height of six feet six inches. Because Leahy felt ‘uncomfortable’ with Stier’s height and because Leahy knew narcotics users and dealers sometimes carry weapons, Leahy decided to handcuff Stier. Nonetheless, at the time Leahy handcuffed Stier, Leahy had no specific, articulable facts suggesting Stier was armed. Leahy also did not believe Stier actually possessed any narcotics. [¶] After Leahy handcuffed Stier, Stier denied having any narcotics, weapons, or contraband on his person and told Leahy to go ahead and check. Leahy searched Stier and found a clear plastic wrapper containing a large amount of an off-white crystallized substance in the right front pocket of Stier’s jeans.” (Id. at p. 25.)
The Court of Appeal concluded that the evidence should have been suppressed and reversed the judgment “because the prosecution did not establish the handcuffing of the driver was reasonably necessary to the detention and, consequently, did not establish the driver’s subsequent consent to be searched was voluntary.” (Id. at pp. 23-24.) As stated by the court: “Generally, handcuffing a suspect during a detention has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. [Citation.] The more specific the information an officer has about a suspect’s identity, dangerousness, and flight risk, the more reasonable a decision to detain the suspect in handcuffs will be. [Citation.] Circumstances in which handcuffing has been determined to be reasonably necessary for the detention include when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers.” (Id. at pp. 27-28.)
The Court of Appeal found that none of the six factors supplying reasonable cause to handcuff a detainee were present and that “Leahy handcuffed Stier primarily because Stier was four to five inches taller than Leahy and Leahy ‘felt uncomfortable’ about the height differential.” (Id. at p. 28.) Because the prosecution failed to establish that the detention was lawful and Leahy lacked probable cause to search Stier at the time he handcuffed him, the court concluded that “Stier’s subsequent consent to the search was not voluntary. Accordingly, the trial court erred in denying Stier’s motion to suppress the evidence obtained during the search.” (Ibid.)
The district attorney concedes that the analysis in Stier “is consistent with the consequences of using handcuffs on suspects... prior to a consent to a pat-down,” but argues that the circumstances in Stier are the “obverse” of those in this case, “where the agents effected a valid arrest based on probable cause prior to the use of handcuffs.” The district attorney argues that in this case the trial court made an initial ruling that the events Andreozzi witnessed in the Kohl’s parking lot, and his knowledge that no drugs were found in the Mustang, provided probable cause to search the Hyundai, which rendered the stop lawful.
Although the district attorney says it is “unnecessary” for him “to take issue... with the analysis of the Fourth District’s opinion in Stier”, his briefs appear to take the position that the Stier court should have limited its analysis to an issue the court erroneously deemed moot; namely, Stier’s claim that the trial court should have granted his motion to suppress because the prosecution failed to establish that Officer Leahy lawfully stopped Stier’s car. In a footnote, the Stier court explained that it considered this contention “moot” but went on to say that, if it were not, the court would find it meritless because it had to accept the trial court’s finding that the mudflaps were too small and the stop was therefore lawful. (Stier, supra, 168 Cal.App.4th at p. 26, fn. 4.)
At oral argument in this court, the district attorney more candidly acknowledged his belief that Stier was wrongly decided, a view we do not share.
The district attorney seems to be saying that the Stier court could and should have affirmed the denial of the suppression motion on the ground that there was probable cause to stop Stier’s truck. As the district attorney states, “instead of disposing of the appeal before it by relying on the settled rule stated by the federal high court in [Whren v. United States (1996) 517 U.S. 806], the Fourth District chose to relegate the dispositive, per se rule announced therein to a footnote, dismiss its significance as applied to the record before it, and to take up as its chief subject the effect of the use of handcuffs on the validity of a suspect’s purported consent to a pat-down during the course of a detention.”
As the district attorney sees it, the footnote in Stier rendering it irrelevant that Officer Leahy had probable cause to stop and detain Stier “has the functional effect of overlooking a paramount premise of Fourth Amendment jurisprudence—the rule that a motorist’s violation of a state’s vehicle code furnishes, eo ipso, ‘probable cause to believe that a traffic violation has occurred.’ (Whren v. United States[, supra,] 517 U.S. at p. 809.)”
Boiled down, the district attorney’s theory of this case rests on the importance he attaches to the trial court’s initial determination that “there was probable cause to search based on the knowledge that there were no drugs in the other car” and the court’s assertedly erroneous reliance on Stier for the proposition “that the inappropriate handcuffing at the time of the detention turns the detention, which would otherwise be lawful, into.. an illegal arrest.” In the district attorney’s view, Stier “has no relevance to the circumstances present here... because the Stier analysis and outcome dealt with events incommensurate with those [in this case].” We cannot agree.
First of all, we find no material difference between the circumstances in Stier and those in this case. Probable cause to stop the vehicle was found in both cases. The only difference, which is in our view immaterial, is that the Stier court treated the probable cause finding as “moot” in light of the subsequent improper handcuffing and the trial court in this case treated that finding as superseded by the subsequent improper handcuffing, which converted what would otherwise have been a lawful detention into an illegal detention. These are simply two slightly different ways of doing the same thing; i.e., finding the lawfulness of the initial stop irrelevant.
Furthermore, we cannot agree with the district attorney that the analysis and conclusion of the Stier court conflicts in any way with “the orthodox view of the law governing constitutionally valid detentions.” In our view, the district attorney avoids the real issue in this case.
The district attorney’s theory of this case is summed up at the close of his four-page reply brief as follows: “It makes good sense to conclude—as the Fourth District did in Stier – that a ‘consent’ to search after being handcuffed amounts to no consent at all, as it also makes for sound Fourth Amendment doctrine to hold that a purported consent to search after being handcuffed without any articulable basis for doing so has the effect of converting a lawful detention into an illegal arrest—as going beyond the circumstantial intrusiveness permitted by the Terry [v. Ohio (1968) 392 U.S. 1] doctrine. Those are not, however, the circumstances presented the Court by this record. In point of fact... the distinction between Stier and this case is sufficiently different to make the rule (and the result) announced in the former opinion irrelevant on this record.”
According to the district attorney, the difference between Stier and this case is that in Stier “the handcuffing exceeded the intrusiveness permitted by Terry [v. Ohio, supra, 392 U.S. 1] under the circumstances, vitiating... the defendant’s consent. Here, however, we deal not with a brief, investigative detention, but with circumstances under which the agents possessed probable cause to believe the Hyundai was the ‘load’ car in a substantial methamphetamine transaction.” Thus, the district attorney concludes, there was not in this case, as there was in Stier, an “absence of any objective basis that could have served as a threat to the physical security of the officers.”
The problem with this argument, which is really no more than a conclusion, is the district attorney’s complete failure to explain why the suspicion of Officers Andreozzi and Macanga that the Hyundai was the “load car,” or any other circumstance in this case, justified the handcuffing of respondents immediately after they were stopped and refused to consent to a search of their vehicle. As we understand the district attorney’s confusing argument, it is that the existence of probable cause to detain respondents and conduct an investigation renders the propriety of the subsequent handcuffing irrelevant, apparently because the possibility of danger or flight was inherent in the situation.
As our Supreme Court has pointed out, “ ‘[t]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ ” (People v. Celis (2004) 33 Cal.4th 667 at pp. 674-675, citing In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385, italics added.) Of significance “are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.” (Id. at pp. 675-676, citing Florida v. Royer (1983) 460 U.S. 491 at p. 500 and In re Carlos M., supra, 220 Cal.App.3d at p. 384.)
While “the use of handcuffs in the course of an investigatory stop does not automatically convert the encounter into a de facto arrest,” the use of handcuffs is nevertheless “one of the most recognizable indicia of a traditional arrest.” (United States v. Acosta-Colon (1st Cir. 1998) 157 F.3d 9, 18.) Although “police conducting on-the-scene investigations involving potentially dangerous suspects may take precautionary measures if they are reasonably necessary,” courts have recognized that “handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop.” (United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289.) As Stier and other cases point out, handcuffing a detainee “has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee.” (Stier, supra, 168 Cal.App.4th at p. 27 (italics added); In re Antonio B. (2008) 166 Cal.App.4th 435, 442; Washington v. Lambert (9th Cir. 1996) 98 F.3rd 1181, 1190.) The fatal flaw in the district attorney’s argument is that the record in this case provides absolutely no basis for believing that the arresting officers thought defendants posed any present physical threat or might flee.
Ordinarily such a reasonable basis is presented “when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers.” (Stier, supra, 168 Cal.App.4th at pp. 27-28, citing Washington v. Lambert, supra, 98 F.3d at pp. 1189-1190.)
The district attorney suggests that Stier “erred” by ignoring language in Professor LaFave’s treatise relating to the propriety of handcuffing a detainee. The language the district attorney relies upon is that “handcuffing of the suspect is not ordinarily proper, yet may be resorted to in special circumstances, such as when necessary to thwart the suspect’s attempt ‘to frustrate further inquiry.’ Even then, such restraint ‘must be temporary,’ and thus, ‘absent other threatening circumstances, once the pat-down reveals the absence of weapons the handcuffs should be removed.’ ” (4 LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004) § 9.2(d), pp. 311-313, fns. omitted.) Stier does not conflict with LaFave; it simply describes the “special circumstances” in which handcuffing may be justified in greater detail than the fragment from the treatise the district attorney quotes. In fact, Professor LaFave approvingly quotes the language from Washington v. Lambert, supra, 98 F.3d 1181, adopted by the Stier court. (4 LaFave, Search and Seizure, supra, § 9.2(d), p. 311, fn. 108.)
The record does not show, and the district attorney does not even claim, that any of these factors are present in this case. Indeed, at the time they were detained, Officers Andreozzi and Macanga knew virtually nothing about the identity of respondents, their dangerousness, or whether they presented a flight risk. Nor did the officers testify that they handcuffed respondents for officer safety or to prevent flight. If the officers had any specific reason for handcuffing respondents almost immediately after they stopped them, it does not appear from the record. All we can tell about the handcuffing from the record (specifically, Andreozzi’s testimony at the suppression hearing) is that immediately after DeMarco refused Andreozzi’s request for his consent to a search of the Hyundai, respondents were both placed in handcuffs. The record provides no explanation for this treatment.
The recent opinion in People v. Osborne (2009) 175 Cal.App.4th 1052, is easily distinguishable. In that case, the defendant appeared to be in the process of burglarizing a car whose dashboard trim around the stereo system had been removed. Tools consistent with car burglary, such as pliers and screwdrivers, were strewn about in the passenger area near the defendant, who was six feet tall and weighed about 240 pounds. Concerned for his safety, the officer asked the defendant to get out of the car to conduct a pat search. When the officer placed the defendant’s hand toward the rear of his body, he noticed that he was “real nervous.” He also felt defendant tense “ ‘as if he were attempting to remove his hand from my grasp.’ ” Because he feared the defendant might assault him, he handcuffed him. (Id. at pp. 1056, 1062.) The Court of Appeal found this conduct reasonable under the circumstances and that the handcuffing did not convert the detention into a de facto arrest. The obvious difference between Osborne and this case is that here the arresting officers, who never bothered to conduct patdown searches, never feared either defendant presented any possibility of danger or flight.
The different fact that the district attorney relies upon—that Officers Andreozzi and Macanga “possessed probable cause to believe the Hyundai was the ‘load’ car in a substantial methamphetamine transaction”—does not, standing alone, provide a reasonable basis for believing respondents posed a present physical threat or might flee. If it did, handcuffing would be permissible in a far broader array of circumstances than is now countenanced by the case law interpreting the Fourth Amendment that we must follow.
Neither Andreozzi, Macanga or any other prosecution witness testified that persons engaged in drug transactions commonly carry and use weapons or pose a greater flight risk than persons engaged in other forms of criminal activity.
The only remaining question is whether we need to inquire whether respondent DeMarco’s consent to the search of the Hyundai was sufficiently voluntary so that suppression was unwarranted, or because the evidence was admissible under the doctrine of inevitable discovery. We cannot address these issues because they have not been properly presented by the district attorney.
Because this is a single appeal, not consolidated appeals, the district attorney filed but one opening brief relating to both respondents. That brief is devoted entirely to the claim that the trial court “misapprehended the scope and significance of the Stier opinion and applied it in this case to reach an erroneous result.” Respondent DeMarco’s brief, which was filed on June 22, 2009, did not address the issue of his consent and made no mention of the doctrine of inevitable discovery. However, respondent Hernandez’s brief, which was filed three days later, did argue that DeMarco’s consent could not render the evidence admissible because that would be the case only if the prosecution could “establish a break in the causal connection between the illegality and the evidence thereby obtained” (United States v. Recalde (10th Cir. 1985) 761 F.2d 1448, 1458), but that could not be done in this case. Though they filed a single opening brief, the People filed separate reply briefs; one in response to DeMarco’s respondent’s brief and the other in response to that of Hernandez. The brief in response to DeMarco made no mention of the effect of his consent or the doctrine of inevitable discovery, but the People’s response to Hernandez’s respondent’s brief contained a final argument entitled: “ASSUMING ARGUENDO THAT STIER DOES APPLY, THE BREAK IN CAUSAL CONNECTION IS ESTABLISHED IN THE RECORD; AND IF NOT, INEVITABLE DISCOVERY DOCTRINE WOULD APPLY, AND THUS SUPPRESSION WAS NOT WARRANTED.” As indicated, the disparate responses of the district attorney are apparently due to the fact that though the consent to search was given by DeMarco, only Hernandez addressed this issue; however, Hernandez made no mention of the doctrine of inevitable discovery. It appears to us that the district attorney would not have raised either issue if Hernandez had not argued that the People could not show a “break in the causal connection” between the unlawful handcuffing and the obtaining of the evidence.
The prohibition on first raising an issue in a reply brief is a basic rule of appellate practice. (People v. Zamudio (2008) 43 Cal.4th 327, 353-354.) Issues not raised in an appellant’s opening brief are ordinarily disregarded when raised by the appellant only in a reply brief, particularly if it appears that the delay in raising the issues was a “gamesplaying” maneuver. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) Neither respondent has been offered an opportunity to respond to the People’s belated reliance on the doctrine of inevitable discovery.
We could offer respondents a full opportunity to address the consent issue on the ground that the district attorney raised the issue in response to Hernandez’s respondent’s brief; though there is no justification for now injecting the inevitable discovery doctrine into this case, as Hernandez made no mention of it. We decline to widen the scope of this appeal beyond the issue raised in the district attorney’s opening brief, because the rule that an issue may not be first raised in a reply brief is not the only rule of appellate practice he has violated.
The district attorney has also violated the even more fundamental rule that an issue may not be raised on appeal for the first time. The record demonstrates that the only legal argument made by the district attorney in the trial court in opposition to the motion to suppress was the one he raises in his opening brief; namely, the inapplicability of Stier. The prosecution made no effort below whatsoever to justify admissibility of the evidence at issue on the basis of either a “causal break” in the connection between the improper handcuffing and the evidence thereby obtained or the doctrine of inevitable discovery. Moreover, as respondent Hernandez correctly points out, with respect to the first of these issues, which Hernandez did raise, the burden was on the prosecution to prove that DeMarco’s consent was sufficiently an act of free will to purge the primary taint of the unjustified handcuffing. (United States v. Recalde, supra, 761 F.2d at p. 1453 [“First, there must be clear and positive testimony that the consent was unequivocal and specific. Second, the Government must establish that the consent was given without duress or coercion”]; see also Wong Sun v. United States (1963) 371 U.S. 471, 487-488.
There is no basis in the record on which the People can now maintain that such showings were made. As noted, respondents were placed in handcuffs almost immediately after DeMarco refused Andreozzi’s request for consent to search the vehicle. Because DeMarco’s consent was obtained only a few minutes after he had refused to consent, it is hard to think the handcuffing had nothing to do with the obtaining of the evidence; but we need not speculate, as the People never made such a claim.
Because the handcuffing of respondents converted the detention into an arrest for which there was no probable cause, and the prosecution did not even attempt to show that respondent DeMarco’s subsequent consent was sufficiently voluntary to establish a causal break in the connection between the evidence obtained on the basis of that consent and the unlawful handcuffing, the trial court properly granted respondents’ motion to suppress.
Accordingly, the order and judgment appealed from are affirmed.
We concur: Haerle, J., Lambden, J.