Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06SF0543, Dan McNerney, Judge.
William Flenniken, Jr., 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, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Herman Lopez pleaded guilty to receiving stolen property and was placed on three years’ probation. He contends the trial court erred in denying his motion because the subject property was seized during an unlawful detention. We agree. Accordingly, we will reverse the judgment and remand the matter to allow Lopez to withdraw his guilty plea.
FACTS
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 parked near the 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, Lopez, the passenger, and codefendant Heather Gillon, the driver, 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 asked defendants to retake their seats, which they promptly 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 further stated that their car was a rental vehicle and that 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 a few feet from Lopez’s 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 person. 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 be 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.
Lopez was charged with one count of receiving stolen property. After the trial court denied his motion to suppress the property (Pen. Code, § 1538.5), he pleaded guilty to the charge.
DISCUSSION
Lopez contends the trial court should have granted his suppression motion because his consent to search was obtained during an unlawful detention. We agree. As we explained in Gillon’s appeal, Lopez and Gillon were clearly detained at the time Brown secured their consent to search. (See People v. Gillon (Mar. 11, 2010, G040004) [nonpub. opn.] at pp. 5-9, filed concurrently herewith.) We therefore turn our attention to the issue of whether Brown had cause to detain Lopez at the time he consented.
“A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. [Citation.] The officer ‘“must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant”’ his action. [Citation.]” (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058.) In reviewing the legality of a detention, we must consider the totality of the circumstances surrounding it. (Ibid.) We must also keep in mind that “[t]he officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
The Attorney General argues Brown had reasonable suspicion to detain Lopez because she “came upon [him] and Gillon in an empty mall parking lot at 4:00 a.m. In her experience, people did not randomly stop at a dark place away from a specific area. It is not uncommon to come upon an intoxicated driver or other suspicious activity under those circumstances. Indeed, an occupied car parked in a mall parking lot with the passenger door left wide open at 4 a.m. is nothing short of suspicious.”
A review of Brown’s dashboard videotape shows it was in fact dark outside when Brown contacted defendants. But defendants’ car was parked near a large, lighted sign that illuminated the area.
Brown did testify that, after hours, the area where defendants were parked “tends to be a magnet” for criminal activity such as drunk driving. However, while an area’s reputation for criminal activity and the time of night are pertinent considerations in determining the legality of a detention (Adams v. Williams (1972) 407 U.S. 143, 144, 147-148; People v. Souza (1994) 9 Cal.4th 224, 241), a person’s presence in a high-crime area at night does not constitute reasonable suspicion per se. (People v. Medina (2003) 110 Cal.App.4th 171, 177.) Therefore, the time and general location of the detention in this case, although obviously pertinent, were “‘insufficient by themselves to cast reasonable suspicion on [defendants].’” (In re H.H. (2009) 174 Cal.App.4th 653, 660.)
Essentially, those are the only two factors the Attorney General relies upon to justify Lopez’s detention. However, the location issue has an additional wrinkle in that defendants’ car was parked near the main public entrance to El Torito, as opposed to the employee entrance, which is on the side of the restaurant. This also struck Brown as being suspicious. Yet Gillon told Brown she and Lopez were not actually employed by El Torito, but were merely there to help a person named Carlos clean the restaurant. Indeed, as soon as Brown pulled up to their car, defendants both got out and began telling this to the officer. This would explain why their car was parked where it was. Defendants also explained to Brown that they were taking a break from their cleaning duties when she arrived. This would explain why they were sitting inside their car with the passenger door open.
Besides explaining their presence in the area, defendants’ statements were relevant for an additional reason. Whereas “contradictory or implausible [explanations] can contribute to a reasonable suspicion of illegal activity” (United States v. Mendez (10th Cir. 1997) 118 F.3d 1426, 1432), defendants’ explanation for what they were doing in the parking lot was consistent, plausible and readily verifiable. That’s not to say Brown and her fellow deputies were required to accept without question every word defendants said, or drop everything they were doing and check on their story. But the fact is, defendants’ explanation did square with the notion they were at the location for a lawful purpose and not involved in any sort of criminal activity. Moreover, they were fully cooperative with the officers, did nothing to generate suspicion. (Compare Illinois v. Wardlow (2000) 528 U.S. 119 [reasonable suspicion existed where defendant was present in high-crime area and fled from the police]; United States v. Evans (7th Cir. 1993) 994 F.2d 317, 320-321 [reasonable suspicion existed where defendant was present in high-crime area at night and he made furtive, suspicious gestures when the police approached him]; People v. Limon (1993) 17 Cal.App.4th 524, 532-533 [same].)
As we mentioned in Gillon’s appeal, the trial judge believed Lopez may have stepped towards Brown upon exiting his car, thereby raising the issue of officer safety. (People v. Gillon, supra, at pp. 4, 6.) “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 or gesture toward Brown or her vehicle.” (Id. at p. 6.)
Considering all of the circumstances, we do not believe there was reasonable suspicion to justify Lopez’s detention. Brown certainly had the right to investigate defendants, which is what she did when she shined her lights on them, questioned them, and ran their personal identification and vehicle information. But those investigative efforts failed to confirm her subjective suspicions, and from an objective standpoint, there was just not enough evidence to reasonably suspect defendants were involved in criminal activity at the time Brown obtained their consent to search. That being the case, we are compelled to find that Lopez’s consent was the product of an unlawful detention and that the trial court erred in denying his motion to suppress. When, as here, the defendant’s consent “is the product of an illegal detention [it] is not voluntary and is ineffective to justify a search or seizure. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
DISPOSITION
The judgment is reversed and the mater is remanded to the trial court with directions to set aside its order denying Lopez’s motion to suppress. If Lopez makes a timely motion to do so, the court shall vacate his guilty plea. If Lopez does not seek to withdraw his plea, the court shall reinstate the judgment.
WE CONCUR: O’LEARY, J., FYBEL, J.