Search of parolee’s car following unlawful detainer was not consensual

People, v Paul 318 Cal.Rptr.3d 142

 Summary:  Paul pleaded no contest to possession of a firearm with a prior violent conviction (Pen. Code, § 29900, subd. (a)(1)) after the trial court denied his motion to suppress evidence of a firearm pursuant to Penal Code section 1538.5. Paul argues that the trial court should have excluded evidence of the firearm because officers discovered it only after they obtained his parole status by unlawfully detaining him.

The Court of Appeal reversed the trial court’s judgment, vacated the court’s order denying Paul’s motion to suppress evidence, and remanded.

Paul’s Testimony about the Traffic Stop

Paul testified that he parked his Prius about a minute before the officers approached him. Paul had turned off the Prius’s engine, but the lights remained on. He was on the phone with a family member when the officers pulled up beside the Prius in their patrol car. The Prius’s driver’s side window was rolled up and the officer was very close—“like inches away”—when he began to address Paul through the closed window. It seemed to Paul that there was a problem, so he raised his hands to shoulder level. Paul testified that he was on active parole at the time of the stop. Paul understood that if he was asked about his parole status he had to answer truthfully, and he did.

Trial Court’s Ruling on Suppression Hearing

The trial court denied Paul’s motion to suppress. The court found that Officer Kumlander’s inquiry regarding Paul’s parole status did not, in itself, rise to the level of a detention. The court found that the initial encounter was consensual.

Unreasonable Search and Seizure

“ ‘The Fourth Amendment protects against unreasonable searches and seizures.’ ” (People v. Greenwood (2010) 189 Cal.App.4th 742, 746, 117 Cal.Rptr.3d 60.) “A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established and well-delineated exceptions.’ ” (People v. Woods (1999) 21 Cal.4th 668, 674, 88 Cal.Rptr.2d 88, 981 P.2d 1019.) “An illegal detention that uncovers evidence is generally subject to the exclusionary rule, which dictates the unlawfully obtained evidence be suppressed as ‘ “fruit of the poisonous tree.” ’ ” (People v. Kasrawi (2021) 65 Cal.App.5th 751, 761, 280 Cal.Rptr.3d 214.)

Police interactions and consent

“It is ‘well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.’ ” (People v. Woods, supra, 21 Cal.4th at p. 674.) “

“ ‘[C]onsensual encounters’ [citation], … are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever—i.e., no ‘seizure,’ however minimal—and which may properly be initiated by police officers even if they lack any ‘objective justification.’ ” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.) The Supreme Court has held “that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions … so long as a reasonable person would understand that he or she could refuse to cooperate.” (Florida v. Bostick (1991) 501 U.S. 429, 431.) “The citizen participant in a consensual encounter may leave, refuse to answer questions or decline to act in the manner requested by the authorities.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941.) “ ‘Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.’ ” (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)

“The test for the existence of a show of authority is an objective one and does not take into account the perceptions of the particular person involved. [Citation.] The test is ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’ ” (People v. Garry, supra, 156 Cal.App.4th at p. 1106.) “This includes an examination of both an officer’s verbal and nonverbal actions in order to ‘assess[ ] the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.’ ” (Id. at p. 1110.)

Initial encounter was an unlawful detention

Paul concedes that, after he informed the officers of his active parole status, their search of his vehicle and seizure of the firearm was lawful. Paul asserts that, because the officers would not have obtained his parole status if they had not first detained him unlawfully, evidence of the firearm was not lawfully obtained and should be suppressed.

Considering the totality of the circumstances, we conclude that the initial encounter with the officers was an unlawful detention. Although Officer Kumlander did not park the patrol car in a manner that prevented Paul from driving away, the officers’ subsequent positioning of their bodies blocked Paul from either driving away or departing on foot.

When Officer Kumlander and Officer Helmkamp exited their vehicle, approached the Prius from both sides, and shined their flashlights into the Prius from close range, right at the car door window they displayed authority that would lead a reasonable person to believe he is not free to leave.

A reasonable person would conclude that when two officers approach in this manner, surrounding the individual in the vehicle, he or she is not free to leave.

When the officers approached Paul while he was talking on his phone inside a legally parked vehicle with the windows rolled up. Paul could not reasonably decline to interact with the officers without suspending or ending his phone conversation and at least engaging in a brief conversation with them. The circumstances would lead an objectively reasonable person believe that the officers required their attention and that they could not simply depart.

In light of all of the circumstances, we cannot conclude that the interaction between Paul and the officers was consensual. The trial court erred by denying Paul’s motion to suppress. “Because it is impossible to assess the impact of an erroneous denial of a motion to suppress evidence on a defendant’s decision to plead [no contest], the harmless error rule is inapplicable in appeals taken pursuant to Penal Code section 1538.5, subdivision (m).

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