Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC935940
RUSHING, P.J.
Defendant Ricky Joe Medina was convicted by no-contest plea of possessing marijuana for sale and possessing a switchblade knife after the trial court denied his motion to suppress the evidence of these offenses as the product of an illegal search and seizure. On appeal he contends that the court erred by denying the motion to suppress and that he was entitled to increased presentence custody credits under amendments to Penal Code section 4019 that took effect 16 days after his arrest. We conclude that the record fails to establish the reasonable articulable suspicion needed to justify a detention of defendant’s person from which all evidence of the offenses was derived. We will therefore reverse the judgment without reaching other issues.
Background
San Jose Police Officer Macedonio Zuniga testified at the suppression hearing that shortly after 10:00 o’clock on the evening of January 9, 2009, he was patrolling in uniform, with his dog, in a marked canine patrol car, when he “observed four subjects, ” including defendant, “standing on the corner of a residence street” on a sidewalk. From across the street he “illuminated them with my patrol vehicle spotlights, ” whereupon “one of them”—not defendant, but one Luis Mercado—“immediately put his hand behind his back.” The officer had seen, however, that he was holding a large beer bottle. He therefore set out to “ma[k]e contact with them” because, he said, he had “observed them drinking in public, ” which is a violation of the City of San Jose Municipal Code. He drove toward the group at about five miles an hour and stopped about three feet away from them.
Officer Zuniga got out of his car and walked towards the group. As he did so, defendant “began to walk away, ” saying that he was walking to his residence. The officer “told him to stop and... to stay where he was.” He took a backpack defendant was wearing and “ordered him and the three other individuals to sit on the curb.” The officer testified that he “detained” defendant because he “believed that he was also drinking in public.” He was led to this belief “[b]ecause as he was walking away, I heard bottles clanging in his backpack, or the sounds of glass, sorry, clanging in his backpack.” The backpack also “appeared to be weighted at the bottom.” Upon “retriev[ing] the backpack from” defendant, the officer “placed it on the trunk of the vehicle which was in front of my parked patrol vehicle.” At that point he “noted the odor of marijuana” coming from the backpack. He could not say whether it was the smell of fresh marijuana or burned marijuana. “It was just a strong odor of marijuana. There was possibility there may be marijuana in the backpack.”
Defense counsel elicited confusing testimony concerning the exact sequence of these events. At one point he elicited confirmation that “before having [defendant] sit on the curb you took his backpack.” Shortly thereafter he led the officer to affirm that he had “said that you ordered him to sit on the curb, and you ordered him to give you his bag.”
On cross-examination the officer reaffirmed that he “heard the sound of glass.” He did not hear “the sound of liquid kind of moving back and forth within [the] backpack.” He later concluded that “[t]he source of the clanging glass was the butterfly knife clanging on the canning jar which had the marijuana debris inside.”
He then “obtained identification” from the other subjects. Defendant said his identification was “in his vehicle, ” which was parked “two vehicles ahead.” Defendant gave the officer permission to get it, which he did. While doing so he “noted the odor of marijuana from the vehicle.”
He then “conducted a search of the backpack, ” finding “a canning jar with marijuana debris, and... two sandwich-sized baggies which were filled... with a green, leafy substance, which... I determined to be marijuana.” The bags had markings or symbols “indicat[ing] that they were smelly-proof bags.” He also found a butterfly knife. He then arrested defendant “[f]or possession of marijuana” for sale.
Officer Zuniga then searched defendant’s person, finding “another grocery bag filled with marijuana, ” as well as a cell phone and $102 in tens, fives, and two-dollar bills. Based upon this he concluded that defendant “was selling marijuana.” He searched the cell phone on the scene. He found it contained “[t]ext messaging that had indicia that he was selling marijuana.” He did not look at the battery status and had no indication that battery was about to die or that he was about to lose the information on the phone.
In fact this was a large plastic grocery bag not “filled” with marijuana but containing “a little bit of marijuana... at the very bottom, ” and “tied in a knot to contain it so it wouldn’t fall out.”
The trial court denied the motion to suppress. About seven weeks later, defendant pled guilty to felony possession of marijuana for sale and misdemeanor possession of a switchblade, on the understanding that he would be placed on probation and serve four months in county jail. The trial court pronounced sentence, suspending imposition, in accordance with the agreement. Defendant filed this timely appeal.
Discussion
Defendant contends that Officer Zuniga’s conduct infringed his Fourth Amendment rights at three distinct points: (1) In detaining his person, i.e., forbidding him to leave the scene, and ordering him to sit on the curb; (2) in removing the backpack from defendant’s possession; and (3) in searching the backpack. We find it necessary to examine only the first of these events, because we are satisfied that the state failed to justify it by showing that the circumstances known to the officer reasonably gave rise to a particularized suspicion that defendant was involved in unlawful activity.
All of the challenged conduct was undertaken without a warrant. A warrantless search or seizure is presumed to offend the Fourth Amendment guarantee against unreasonable searches and seizures. (People v. Williams (2006) 145 Cal.App.4th 756, 761; Mincey v. Arizona (1978) 437 U.S. 385, 390.) The state therefore bears the burden of demonstrating that a warrantless search or seizure comes within some exception to the rule of unreasonableness. (People v. Johnson (2006) 38 Cal.4th 717, 723; see Katz v. United States (1967) 389 U.S. 347, 357.) This rule extends to warrantless “detentions, ” i.e., where an officer of the state “seizes” a person by preventing him from going about his or her way, without placing him under arrest. (People v. Bower (1979) 24 Cal.3d 638, 644 [“As with all warrantless intrusions, the burden lies with the state to justify a detention.”].)
There is no doubt that Officer Zuniga’s actions here constituted a detention for constitutional purposes. As the officer approached a group of men including defendant, defendant began to walk away, saying that he was going home. This was his absolute constitutional right, in the absence of constitutionally sufficient grounds to detain him. A person approached by law enforcement officers “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” (Florida v. Royer (1983) 460 U.S. 491, 498.) If he does so, he “may not be detained even momentarily without reasonable, objective grounds, ” and “his refusal to listen or answer does not, without more, furnish those grounds.” (Ibid.)
Here the officer did not even attempt to solicit defendant’s voluntary cooperation. When defendant attempted to leave, the officer “told him to stop and... to stay where he was, ” then “ordered him and the three other individuals to sit on the curb.” “These circumstances surely amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ ” (Florida v. Royer, supra, 460 U.S. at p. 502, quoting United States v. Mendenhall (1980) 446 U.S. 544, 554.) Indeed the officer freely described himself on direct examination as having “detained” defendant. Respondent tacitly concedes the accuracy of this description.
The question then becomes whether the seizure was “unreasonable” so as to offend the constitutional guarantee of freedom from “unreasonable searches and seizures.” (U.S.Const., 4th Amend.) Under Terry v. Ohio (1968) 392 U.S. 1, a detention for investigatory purposes may be constitutionally reasonable “if there is articulable suspicion that a person has committed or is about to commit a crime.” (Florida v. Royer, supra, 460 U.S. at p. 498; see id. at p. 502 [“reasonable, articulable suspicion to justify a temporary detention”].) In reviewing the trial court’s conclusion that there was such a basis, we defer to that court’s findings concerning “ ‘historical facts’ ” but consider independently what legal principles apply and how they apply to the facts thus presumptively found. (People v. Ayala (2000) 23 Cal.4th 225, 255.)
Officer Zuniga testified that he initially detained defendant because he believed defendant was drinking in public in violation of the San Jose Municipal Code. He attributed this belief to three observations: One of defendant’s companions was holding a beer bottle; a glassy “clanging” (clinking) sound emanated from defendant’s backpack; and the backpack “appeared to be weighted down at the bottom, ” i.e., to contain one or more heavy objects.
As relevant here, section 10.12.010 of the San Jose Municipal Code states, “Except as otherwise permitted under this municipal code, no person shall drink any alcoholic or other intoxicating beverage in the City of San José: [¶] 1. On any public street, sidewalk, alley or highway....”
These observations would ground a reasonable suspicion that defendant had one or more weighty glass objects in his backpack. It might even be reasonable to suspect that they were beer bottles. But they furnished no basis to suspect that defendant had drunk from, or intended to drink from, these suspected bottles, or any other alcoholic beverage containers, in public. The mere fact that a person is seen in proximity to, or socializing with, someone who is drinking beer does not support a reasonable suspicion that the first person is also drinking beer—especially when he does not appear to be doing so. Generally speaking, the drinking of beer is not an inconspicuous act. It was conspicuous enough in this instance that Officer Zuniga readily spotted the one person actually engaged in it. All the evidence before him indicated that defendant, and the other two men, were not drinking beer in public. His professed suspicion that he, or they, were also drinking beer, rests on no factual foundation whatever. It was, at best, a hunch. This is not enough to justify a detention. (United States v. Sokolow (1989) 490 U.S. 1, 7, [“The officer... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ”].)
Conceivably the detention might have been justified on the ground that the officer reasonably suspected that defendant was guilty of possessing alcohol while under the drinking age. The mere possession of an alcoholic beverage in a public place is a misdemeanor if the possessor is under 21 years old and the alcohol is not possessed for the purpose of “making a delivery” at the direction of a responsible adult. (Bus. & Prof. Code, § 25662 (§ 25662), subd. (a).) But no attempt was made to establish this as a basis for the detention. The only evidence concerning defendant’s age is an ambiguous exchange concerning the officer’s “conclusion” that defendant was under the “legal drinking age.” The prosecution’s written arguments below also contained passing assertions that some or all members of the group appeared “underage.” But no attempt was made to articulate a factual basis for the officer’s “conclusion” that defendant, who was in fact just three months shy of his 20th birthday, appeared distinctly to be under the age of 21. Again, on this record, this could be nothing more than a hunch.
“Q Was there anything about the appearance of the backpack that stood out to you?
Nor has the state ever cited illegal possession as a basis for the detention. The officer did not allude to section 25662; neither that statute, nor the rule it articulates, was ever cited to the trial court. Rather the consistent claim was that a member of the group was “drinking from an open container... in violation of San Jose Municipal Code 10.12.” Nor has respondent cited section 25662 to us. This makes it unnecessary to consider whether such a theory would be barred on appeal as an impermissible divergence from the theory relied on by the state to justify the detention in the trial court. (See People v. Williams (1999) 20 Cal.4th 119, 136-137.)
Respondent’s primary argument here is that Officer Zuniga directly attributed unlawful public drinking to defendant by testifying that he saw or suspected such conduct by “them.” Respondent writes, “[Officer Zuniga] said he contacted four individuals standing on the corner and had all four sit on the curb. Asked why, he responded, ‘I observed them drinking in public, ’ a violation of the municipal code.... Here, the plural does not denote the singular; the officer stopped the four men whom he had observed drinking in public.” (First italics respondent’s; record citations omitted.)
Whether or not the officer’s use of the plural “denote[s] the singular, ” his use of a plural pronoun, without further explanation, does not articulate a ground for a reasonable suspicion that defendant had been drinking in public, or intended to do so. Indeed the officer’s only specific testimony on the subject unequivocally established that he did not see defendant, or anyone other than Mercado, drinking. He “never” saw defendant touch, let alone drink from, the bottle in Mercado’s possession. When asked why he had detained defendant, he testified that he “believed that [defendant] was also drinking in public.” (Italics added.) This was based not on any direct observation but on the inferences we have previously noted—inferences that could not sustain a reasonable suspicion that defendant was drinking in public, or anywhere else. Contrary to respondent’s construction, Officer Zuniga did not “observe[]” defendant “drinking in public.” His careless use of a plural pronoun is not substantial evidence to the contrary.
“Q And you saw—during that walk-up you saw that one of the individuals was potentially hiding something behind his back, correct?
We conclude that the state failed to carry its burden of showing a reasonable basis for the initial detention of defendant. This makes it unnecessary to consider whether later actions also violated his Fourth Amendment rights. Because this conclusion will almost certainly require dismissal of the underlying charges, we decline to reach the issue whether the trial court properly refused to apply the January 2010 version of Penal Code section 4019 so as to allow defendant additional credit for time in custody prior to sentencing.
Disposition
The judgment is reversed with directions to set aside the order denying defendant’s motion to suppress and to make a new order granting that order and suppressing all evidence taken from his person and effects on January 9, 2009. The petition for writ of habeas corpus is denied as moot.
WE CONCUR: PREMO, J.DUFFY, J.
The witness cannot have meant “clanging, ” which describes a “harsh metallic ringing” sound. (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 211.) He probably meant clinking, which describes “a slight sharp short metallic sound.” (Id. at p. 215.) Both terms are obviously onomatopoeic. A glass jar might clink; it could never clang.
“A Yeah. It appeared to be weighted at the bottom.
“Q Did you draw any conclusions at that point in time about his age?
“A That he was a minor—well, not a minor as in under the age of 18, but at least under the age of 21, the legal drinking age in California.”
“A Yes.
“Q And that individual you identified as not being my client, correct?
“A Correct.
“Q In fact, during the course of your observations from when you first spotlighted Mr. Medina to your detention of Mr. Medina you never saw him touch the alcohol bottle in question, correct?
“A Never.
“Q And you never saw him drink out of that bottle, correct?
“A Correct.
“Q And before detaining Mr. Medina you didn’t observe any symptoms of intoxication upon him, correct?
“A Correct.
“Q You didn't smell an odor of alcohol?
“A Before contacting him?
“Q Yes.
“A No.”