Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06SF0543, Dan McNerney, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Eric A. Swenson and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Following the denial of her motion to suppress evidence (Pen. Code, § 1538.5), appellant Heather Gillon pleaded guilty to various crimes and was placed on three years’ probation. She contends the trial court erred in denying her motion to suppress because the subject evidence was derived from an unlawful detention. We agree. Accordingly, we will reverse the judgment and remand the matter to allow Gillon to withdraw her guilty plea.
Gillon makes a secondary argument pertaining to a term of her probation, but the claim is moot in light of this disposition.
Except where noted, the facts were derived from the hearing on Gillon’s motion to suppress.
At four o’clock one Sunday morning, Orange County Sheriff’s Deputy Christina Brown was patrolling near the Laguna Hills Mall when she noticed a car by El Torito restaurant. The car was parked front-first into a parking space, perpendicular to a bush-lined curb, and no other vehicles were in the vicinity. Brown became suspicious because the car’s front passenger door was open, and although workers clean El Torito during the night, the car was by the main public entrance to the restaurant, not the employee entrance. In addition, Brown knew from her experience the area “tends to be a magnet for... intoxicated drivers, criminal activity.” Given the late hour, she thought it was suspicious to see a car “just stopp[ed] randomly in a dark place” by itself.
With all of her lights turned off, Brown pulled up and parked her squad car about 12-16 feet behind, and to the right of, the car. She intended to run the car’s license plate, to see whether the vehicle was stolen. But as soon as she pulled up, Gillon, the driver, and codefendant Herman Lopez, the passenger, stepped out of the car. Standing by their respective doors, they began yelling out to Brown that they were taking a break from their work at El Torito. Brown turned on her headlights and spotlight and shined them on defendants’ car. Then she got out of her squad car, and from behind her door, she spoke to defendants.
At the preliminary hearing, Brown testified she asked defendants to retake their seats. But at the motion hearing, Brown testified she told defendants, “Hang on, I’ll talk to you in a second.” Whatever words she used, defendants responded by immediately getting back into their seats.
After they did, Brown radioed in her location and defendants’ license plate number, and the dispatcher informed her defendants’ car was not stolen. Brown then walked up and talked to defendants from the driver’s side of their car. She also obtained their identification information and wrote down their names. Gillon explained that she and Lopez were not actual employees of El Torito, but were helping a person named Carlos clean the restaurant. She also said their car was a rental vehicle and they had been using it for about a week. According to Brown, Gillon’s tone of voice was animated and she appeared to be nervous.
Continuing the conversation, Brown asked defendants if they were on probation or parole, and Gillon said she had been arrested for being under the influence and was voluntarily attending narcotics classes. Lopez said he was on probation for check fraud and identity theft. Brown inquired about the terms of his probation, but she couldn’t make out his response, due to a language barrier. Unlike Gillon, Lopez was “laid back” and spoke in a slow, conversational manner.
About a minute or so after Brown started talking to defendants, a backup deputy arrived and positioned himself a few feet from Lopez’s door, which was still open. Then another deputy, Nguyen, arrived and took his place. Nguyen shined his flashlight into defendants’ car and peered inside their vehicle. Then he stood by just outside Lopez’s open door while Brown finished up her conversation with defendants and returned to her squad car. Brown proceeded to run defendants’ information through her computer to see if they had any outstanding warrants and to find out if Lopez’s probation included a search condition. She discovered defendants did not have any outstanding warrants, and Gillon’s driver’s license was valid. But she could not find out anything about the terms of Lopez’s probation.
At that point, about 15 minutes into the encounter, Brown walked back up to Gillon and asked her if there was anything illegal in her car. When she said no, Brown asked her if she could search the car. She also asked Gillon if she could search her. Gillon said yes to both requests and exited the car, at which time Brown patted her down. Not finding anything, Brown asked her to take a seat on the curb, which she did. Brown then contacted Lopez on the passenger side of the car, and he too consented to being searched. After seizing a wallet and keys from him, Brown asked him to be seated on the curb, and he sat down next to Gillon. Brown then searched defendants’ car and found numerous stolen items, including mail and credit cards. She also found some methamphetamine and a smoking pipe by the driver’s seat. Inside Lopez’s wallet, Brown discovered several fake drivers’ licenses.
The entire encounter was recorded by a video camera that was mounted on the dashboard of Brown’s squad car. However, for reasons unknown to Brown, the sound on the camera was not working that night. The parties stipulated the court could consider the video, as well as Brown’s preliminary hearing testimony, in ruling on the motion to suppress.
The court found, as a factual matter, Brown asked, rather than commanded, defendants to get back into their seats when she first spoke to them. It also found Brown did not block defendants’ car with her car, did not shine her spotlight on defendants when she first contacted them, and did not leave her squad car until defendants resumed their seats in their vehicle. In addition, the court noted Lopez appeared to take a step toward Brown’s squad car when he first got out of his vehicle. The court felt that from a safety perspective, Brown’s actions were reasonable in light of all of these circumstances. However, the court ultimately found defendants were not detained when Brown asked them to retake their seats, and therefore, it denied their motion to suppress.
In the wake of this ruling, Gillon pleaded guilty to receiving stolen property and possessing methamphetamine and drug paraphernalia. The court then placed her on three years’ formal probation.
DISCUSSION
In challenging the court’s ruling, Gillon argues she and Lopez were detained when Brown illuminated them with her spotlight and asked them to resume their seats in their car. We do not believe defendants were detained at that point of the encounter. However, as we shall explain more fully, infra, we are convinced they were detained by the time Brown obtained their identification information, questioned them about their probation and parole status, ran their information through her computer and obtained their consent to search.
In reviewing the trial court’s order, we first examine its disputed factual findings to determine whether they are supported by substantial evidence. Then, based on the evidence supporting the court’s findings, we must exercise our independent judgment to determine whether Gillon was detained for purposes of the Fourth Amendment. (People v. Loewen (1983) 35 Cal.3d 117, 123; People v. Hester (2004) 119 Cal.App.4th 376, 385.)
The first factual finding Gillon disputes pertains to the location of Brown’s vehicle during the encounter. The trial court found Brown “stopped her unit approximately two car lengths behind and to the side of the defendant’s vehicle in a position that, although it was... clearly visible to the occupants of the vehicle,... did not block the defendant’s vehicle.” Brown was never asked whether the position of her car prevented defendants’ car from leaving. But she was asked whether she was parked directly behind defendants’ car. Her reply was, “Not directly behind. Behind and to the right.”
The videotape confirms the truth of this response. Based on the tape, it appears the left side of Brown’s squad car was about lined up with the right side of defendants’ car. There was also several feet of space between their vehicles, so while Gillon might not have been able to leave the scene by simply backing out of her parking space, she did have enough room that, with time, she would have been able to work her way around Brown’s squad car. So in that sense, Brown’s car would be more aptly described as a slight impediment to Gillon’s leaving, as opposed to an insurmountable barrier.
Gillon also takes issue with the court’s finding about whether Brown illuminated defendants with the spotlight of her car. At first, the court commented generally that Brown did not “light up” defendants with her spotlight. Then, after discussing the evidence further, the court stated, “We have an officer who does not light up the occupants with her spotlight initially when she sees them.” (Italics added.) Technically, that is an accurate statement, for Brown did not have any of her lights on when she first approached defendants’ car. However, Brown testified that as soon as defendants got out of their car and started yelling out to her, she turned on her lights. And the videotape shows Brown did in fact shine her headlights and her side spotlight on defendants’ car just seconds after they got out of the vehicle. So, that will serve as the factual basis for our analysis as to this point.
Next, Gillon challenges the court’s finding Brown did not leave her squad car until after defendants resumed their seats in their car. As the Attorney General admits, this finding is not supported by the record. It appears the court misunderstood the testimony. Therefore, we will disregard the court’s finding on this issue.
Lastly, Gillon contends there is not substantial evidence to support the court’s finding that, upon exiting defendants’ car, Lopez took a step in the direction of Brown’s squad car. Again, Gillon is correct. This issue never came up during Brown’s testimony, but the videotape shows Lopez simply stood next to defendants’ car until Brown asked him to be reseated. There is no indication he ever made any sort of movement toward Brown or her vehicle.
So, for purpose of our review, we will proceed on the following facts: Soon after Brown parked her darkened squad car behind and to the right of defendants’ car, defendants got up and yelled out to Brown that they were on break from cleaning the nearby El Torito restaurant. Brown shined her headlights and spotlight on defendants’ vehicle, and from behind her door, asked them to retake their seats, which they promptly did. Brown then radioed dispatch and was informed defendants’ car was not stolen. After that, she approached their car and obtained their identification information and probation status. She also conversed with defendants about what they were doing in the area. During this time, two backup deputies arrived and took turns standing near Lopez’s open door. One of the deputies also shined his flashlight into defendants’ car and looked about their vehicle from time to time. Following her conversation with defendants, Brown returned to her car and checked out the information they had given her on her computer. Upon learning they did not have any outstanding warrants, she then returned to their car and obtained their consent to search. Approximately 15 minutes elapsed from the time Brown pulled up to defendants’ car until the time consent was given. Based on these facts, we must decide whether Gillon was seized for purposes of the Fourth Amendment.
“A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, ‘“by means of physical force or show of authority,”’ terminates or restrains his freedom of movement....” (Brendlin v. California (2007) 551 U.S. 249, 254.) The test is an objective one: “[A] seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave[.]’ [Citation.]” (Id. at p. 255.) In other words, “when police engage in conduct that would ‘communicate[ ] to a reasonable person that he was not at liberty to ignore the police presence and go about his business,’ there has been a seizure. [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 673.) This standard “is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” (Michigan v. Chesternut (1988) 486 U.S. 567, 573.)
That last point is important because, in our view, we are unable to identify any particular action that, in and of itself, transmogrified this encounter into a detention. But looking at the circumstances as a whole, we are convinced a reasonable person in defendants’ shoes would not have felt free to leave by the time Brown obtained their consent to search.
As we have noted, Brown did not park her patrol car in a manner so as to prevent defendants from driving away. But it does appear she parked close enough to defendants’ car so that they probably would have had to maneuver around her in order to leave the spot they were in. Therefore, it seems Brown’s car was an obstacle to their departure. Brown also shined her headlights and spotlight on defendants’ car when they got out of it, which could very well “cause a reasonable person to feel himself the object of official scrutiny.” (People v. Perez (1989) 211 Cal.App.3d 1492, 1496.) Still, as Gillon admits, the facts at that point in the encounter did not rise to the level of a detention. (Ibid.)
Gillon argues the encounter turned into a detention when Brown asked her and Lopez to retake their seats in the car. But the court found they were asked to retake their seats, and asking a suspect to do something generally does not have the same coercive effect as telling a suspect to do something. Consequently, courts have determined the police may request certain action of a suspect during a street encounter without implicating the Fourth Amendment. (People v. Franklin (1987) 192 Cal.App.3d 935, 941 [asking defendant to remove his hands from his pockets did not convert encounter into a detention]; compare People v. Verin (1990) 220 Cal.App.3d 551, 554 [defendant was detained when officer commanded him to “hold it” or “hold on”].) Since the trial court found that Brown did nothing more than ask defendants to be seated in their car, the request did not transform the encounter into a detention.
But there was more. Soon after defendants retook their seats, Brown approached them and requested their identification information and probation status. No matter how politely Brown may have gone about doing this, it further signaled that defendants were not free to ignore her and go about their business. (People v. Garry (2007) 156 Cal.App.4th 1100, 1112.) Brown’s decision to run a record check also signified as much. While the mere act of conducting a warrant check does not, by itself, amount to a detention, it is a factor in our analysis. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287.)
It is also significant that soon after Brown initially approached defendants’ vehicle, there was a backup deputy positioned just a few feet away from Lopez’s open door. The first deputy to arrive just stood in that location looking on. But after a few minutes, he was replaced by Deputy Nguyen, who immediately made his presence known to defendants by shining his flashlight into their car and looking about their vehicle. He then stood guard by Lopez’s door while Brown returned to her squad car and conducted the record check, which took several minutes. With Nguyen watching over them, and Brown running their information, defendants had no other realistic option than to sit in their car and wait for the deputies’ next move.
That came about 15 minutes into the encounter, when Brown returned to their vehicle and asked for their consent to search. But by then, considering everything that had already transpired, no reasonable person in defendants’ position would have felt free to leave. The police presence in this case — which took the form of bright lighting, direct questioning, multiple armed deputies, a flashlight search and a warrant check — was just too restrictive to conclude otherwise. Therefore, we are compelled to find that defendants were detained by the time Brown obtained their consent to search.
A detention is legally justified if there is reasonable suspicion to believe the suspect is involved in criminal activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.) However, the Attorney General does not argue there was reasonable suspicion to detain Gillon prior to the search. This strikes us as somewhat odd because the Attorney General did raise the issue of reasonable suspicion in Lopez’s appeal. (See People v. Lopez (Mar. 11, 2010, G040154) at pp. 4-7 [nonpub. opn.], filed concurrently herewith.) In any event, the inconsistency is immaterial in light of our conclusion in Lopez’s appeal that Brown lacked reasonable suspicion to detain defendants at the time she obtained their consent to search. (Ibid.) That being the case, we are compelled to find Gillon’s consent was the product of an unlawful detention. (People v. Zamudio (2008) 43 Cal.4th 327, 341 [consent that is derived from an unlawful detention is involuntary and cannot be used to justify a search or seizure].) Therefore, the trial court erred in denying her motion to suppress.
DISPOSITION
The judgment is reversed and the mater is remanded to the trial court with directions to set aside its order denying Gillon’s motion to suppress. If Gillon makes a timely motion to do so, the court shall vacate her guilty plea. If Gillon does not seek to withdraw her plea, the court shall reinstate the judgment.
WE CONCUR: O’LEARY, J., FYBEL, J.