Filed 3/30/22 P. v. Montanez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Jose Antonio Montanez was convicted of possession of a firearm by a felon, possession of ammunition by a felon, and carrying a concealed firearm in a vehicle. On appeal, he contends that the search that led to the discovery of the firearm and ammunition was unlawful because it was preceded by a detention without reasonable suspicion of wrongdoing. The People disagree, arguing that defendant consensually interacted with the officer and the officer searched defendant only after learning he was on parole. In the alternative, they argue that even assuming the officer unlawfully detained defendant, the attenuation doctrine applies and the evidence need not have been excluded. We affirm.

PROCEDURAL SUMMARY

On January 24, 2019, the Tulare County District Attorney filed a first amended information charging defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)[1]; count 1), possession of ammunition by a felon (§ 30305, subd. (a)(3); count 2), carrying of a concealed firearm in a vehicle (§ 25400, subd. (a); count 3), and failure to appear (§ 1320, subd. (b); count 4). As to each count, the information further alleged defendant had suffered a prior serious felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served a prior prison term (§ 667.5, subd. (b)).

On January 17, 2020, the trial court found defendant guilty on counts 1 through 3. Defendant’s “RAP” sheet, detailing his prior strike conviction, was also admitted.

On September 29, 2020, the trial court sentenced defendant to a total term of 32 months as follows: on count 1, 32 months (the low term of 16 months doubled due to the prior strike conviction); and on counts 2 and 3, 32 months (the low term of 16 months doubled due to the prior strike conviction) concurrent to the term on count 1. No prior prison term enhancements were imposed.

On November 10, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY[2]

On April 24, 2017, the trial court held a hearing on defendant’s motion to suppress evidence pursuant to section 1538.5.

On December 4, 2016, at approximately 2:30 a.m., Tulare County Sheriff’s Deputy Brian Pinheiro was on patrol duty when he noticed a lone vehicle parallel parked along the shoulder of the road in an area known for high drug and alcohol use. He parked his marked patrol car behind the vehicle, used his spotlight to illuminate the vehicle, and approached the vehicle. He did not activate his emergency lights. As he approached the vehicle, he noticed that the rear driver’s side door was open and he saw defendant and a woman in the back seat.

Pinheiro asked defendant and the woman for their identification. Both produced driver’s licenses. Pinheiro then “ran [defendant and the woman] through dispatch at which point [he learned defendant] was on active parole.” The dispatcher informed Pinheiro that defendant’s parole included search terms. Pinheiro then asked defendant to exit the vehicle; searched defendant for weapons, locating none; and conducted a search of the vehicle. In the vehicle, Pinheiro located a semiautomatic handgun, wrapped in a pair of pants that were located directly below where defendant’s feet sat when Pinheiro contacted him. The handgun contained 10 rounds of ammunition.

Pinheiro arrested defendant and transported him to the Porterville Sheriff’s Substation. After Pinheiro read defendant a Miranda[3] admonition, defendant admitted that the pants belonged to him. He further told Pinheiro that he had found the handgun earlier in the day.

On that record, the trial court concluded that the interaction between defendant and Pinheiro was consensual until Pinheiro conducted the parole search. On that basis, the court denied defendant’s motion to suppress evidence.

On January 12, 2018, defendant renewed his motion to suppress and moved to set aside the information pursuant to section 995. The trial court summarily denied the motion.

DISCUSSION

Defendant argues that the contact between he and Pinheiro was at no point a consensual encounter. Instead, from the outset, it was a detention without reasonable suspicion of wrongdoing. The People disagree. They argue that the interaction was a consent encounter until Pinheiro discovered that defendant was on parole. Alternatively, the People argue that even if a Fourth Amendment violation occurred, the evidence obtained need not have been excluded based on the attenuation doctrine. We agree with the People that, even assuming a Fourth Amendment violation occurred—a question which we do not resolve—no exclusion of evidence was required.

A. Standard of Review and General Legal Principles

Section 995 authorizes a court to set aside an information if (1) the defendant was not “legally committed by a magistrate” or (2) the defendant was committed “without reasonable or probable cause.” (§ 995, subd. (a)(2)(A) & (B).) “Probable cause exists if a person ‘ “ ‘ “of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion” ’ ” ’ that the defendant committed the crime.” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8.) An information is not appropriately set aside “ ‘if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 654.) “This is an ‘exceedingly low’ standard ….” (People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245.)

“Where, as here, the defendant challenges the suppression ruling by a motion to dismiss under Penal Code section 995, we review the determination of the magistrate who ruled on the motion to suppress, not the findings of the trial court.” (People v. Fews (2018) 27 Cal.App.5th 553, 559.) “ ‘n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate ….’ ” ([i]People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) We do not substitute our own judgment for that of the committing magistrate concerning the weight of the evidence or the credibility of the witnesses. (People v. Block (1971) 6 Cal.3d 239, 245.) However, “ ‘where the facts are undisputed, the determination of probable cause “constitute[s] a legal conclusion which is subject to independent review on appeal.” ’ ” (People v. Black (2017) 8 Cal.App.5th 889, 898.) “ ‘Insofar as the … section 995 motion rests on issues of statutory interpretation, our review is de novo.’ ” (Gonzalez, supra, 2 Cal.5th at p. 1141.)

We will uphold the magistrate’s ruling if it “is correct on any theory of the law applicable to the case, even if the ruling was made for an incorrect reason.” (People v. McDonald (2006) 137 Cal.App.4th 521, 529.)

The federal and California Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) California law applies federal constitutional standards to the review of search and seizure rulings. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) Under section 1538.5, a trial court may grant a motion to suppress evidence “only if exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.) The initial burden is on the defendant to establish that the government conducted a search without a warrant. The burden then shifts to the prosecution to justify the warrantless search. (People v. Williams (1999) 20 Cal.4th 119, 127.) A warrantless search is presumptively unreasonable. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652–653.) The prosecution must prove by a preponderance of the evidence the search falls within an exception to the Fourth Amendment’s warrant requirement. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334–1335.)

B. Purported Fourth Amendment Violation

Not all contacts between civilians and law enforcement constitute searches and seizures. Generally, police contact with individuals in public places will fall into one of three categories: (1) a consensual encounter, (2) a detention, and (3) an arrest. (People v. Bailey (1985) 176 Cal.App.3d 402, 405.) A consensual encounter between a law enforcement officer and a citizen does not constitute a seizure under the Fourth Amendment. (Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick); People v. Kidd (2019) 36 Cal.App.5th 12, 20 (Kidd) [“ ‘ “It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so” without having any “articulable suspicion of criminal activity.” ’ ”]) An encounter is consensual if a reasonable person would feel free to leave or to refuse to cooperate with the officer and go about his or her business. (Bostick, at pp. 431, 434; Illinois v. Wardlow (2000) 528 U.S. 119, 125.) A seizure, or detention, occurs when an officer restrains a person’s liberty by means of either physical force or a show of authority. (Brendlin v. California (2007) 551 U.S. 249, 254 (Brendlin).)

The California Supreme Court has explained the test to distinguish between a consensual encounter and a detention: “The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. 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.] ‘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. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.” ([i]In re Manuel G. (1997) 16 Cal.4th 805, 821.) Other relevant factors can include “the time and place of the encounter, whether the police indicated the defendant was suspected of a crime, whether the police retained the defendant’s documents, and whether the police exhibited other threatening behavior. [Citations.] [¶] Questions by an officer of a sufficiently accusatory nature may ‘be cause to view an encounter as a nonconsensual detention.’ [Citation.] The same is true for commands or directions issued in the course of an encounter.” (People v. Linn (2015) 241 Cal.App.4th 46, 58.)

Here, defendant focuses on Pinheiro parking his patrol car behind defendant’s vehicle, illuminating defendant’s vehicle, approaching the vehicle on foot, and requesting identification from defendant. As we will explain, parking behind an individual, requesting his or her identification, and approaching an individual on foot would not tend to indicate to a reasonable person that he or she was detained. However, courts are split on whether illuminating a vehicle with a spotlight while parked behind the vehicle constitutes a detention. We need not resolve that dispute to decide this case because, even assuming Pinheiro detained defendant without reasonable suspicion of wrongdoing, application of the attenuation doctrine is appropriate, and the evidence obtained from the parole search need not have been suppressed.

First, “t is settled that the driver and occupants of a vehicle are detained when a police officer blocks the vehicle’s only means of departure with the officer’s patrol car.” ([i]People v. Tacardon (2020) 53 Cal.App.5th 89, 98, review granted Oct. 14, 2020, S264219 (Tacardon); see Kidd, supra, 36 Cal.App.5th at p. 21 [“Without more, a law enforcement officer simply parking behind a defendant would not reasonably be construed as a detention.”) However, such was not the case here. The trial court found that defendant was “parked parallel on the side of the road.” Pinheiro did not block defendant’s car “in a parking stall” or otherwise block his ability to drive away.

Second, a police officer’s merely asking a person for identification does not necessarily implicate the Fourth Amendment, even if the officer does not immediately return the proffered identification card. (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 185; Bostick, supra, 501 U.S. at pp. 434–435; People v. Linn, supra, 241 Cal.App.4th at pp. 59–61.) On the other hand, a police officer’s order or demand that a person provide their identification suggests that compliance is required, and the person is not free to leave. (See Bostic, at pp. 434–435 [a request for identification is not a consensual encounter where the officer suggests that compliance is required]; People v. Leath (2013) 217 Cal.App.4th 344, 353 [holding that an encounter was consensual where the officer “asked for—but did not demand—identification”].) Here, Pinheiro was asked if he “ask[ed defendant] for identification”; he responded, “Yes.” On that record, it appears that Pinheiro requested and defendant voluntarily produced his identification card. The trial court so concluded at the suppression hearing: “It is lawful, a consensual encounter for the officer to seek identification … and [defendant] voluntarily complied.” That circumstance tends to indicate that the encounter was consensual and not a detention.

Third, whether a police officer’s illumination of a vehicle with a spotlight—as opposed to activating emergency lights—and then approaching the vehicle on foot, constitutes a detention is an open question which we need not resolve. (Compare Tacardon, supra, 53 Cal.App.5th at p. 99 [a police officer’s illumination of a vehicle with a spotlight and approach on foot does not “manifest a sufficient show of police authority to constitute a detention] with Kidd, supra, 36 Cal.App.5th at p. 21 [the defendant “was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car”]; cf. People v. Kasrawi (2021) 65 Cal.App.5th 751, 760 & fn. 3 [use of a spotlight is a show of authority that suggests a detention but such a show of authority can be tempered by an officer’s conduct that implies that the individual has a choice in the encounter].) The Tacardon court followed People v. Perez (1989) 211 Cal.App.3d 1492, 1496, in concluding that, “although a person whose vehicle is illuminated by police spotlights at night may well feel he or she is ‘the object of official scrutiny, such directed scrutiny does not amount to a detention.’ ” (Tacardon, at pp. 99–100.) On the other hand, the Kidd court observed that “motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights.” (Kidd, at p. 21.) As noted, we do not attempt to resolve the dispute here.

We do not determine whether a Fourth Amendment violation took place.

C. The Exclusionary Rule and the Attenuation Doctrine[4]

Where a detention is unlawful, the exclusionary rule may mandate suppression of the evidence obtained as a direct result of the unlawful detention and any “ ‘evidence later discovered and found to be derivative of an illegality,’ the so-called ‘ “ ‘fruit of the poisonous tree.’ ” ’ ” (Utah v. Strieff (2016) 579 U.S. 232, 237.) However, “exclusion may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.” (Hudson v. Michigan (2006) 547 U.S. 586, 592.) “[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.” (Ibid.)

Under the attenuation doctrine, evidence may be admissible despite that it would not have been discovered “ ‘ “but for” ’ ” illegal police conduct. (Brendlin, supra, 45 Cal.4th at p. 268.) The question in an attenuation case “ ‘ “is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” ’ ” (Ibid.) Three factors frame the analysis: (1) the “ ‘temporal proximity’ ” between the police conduct and the discovery of the evidence; (2) the “ ‘presence of intervening circumstances’ ”; and (3) “ ‘the purpose and flagrancy of the official misconduct.’ ” (Utah v. Strieff (2016) 579 U.S. 232, 239 (Strieff).) The third inquiry is “ ‘particularly’ significant.” (Ibid.)

As to the first factor, we first examine “the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed” the purportedly illegal police conduct. (Strieff, supra, 579 U.S. at p. 239.) This factor generally disfavors a finding of attenuation “unless ‘substantial time’ elapses between an unlawful act and when the evidence is obtained.” (Ibid.) However, our Supreme Court has observed that “temporal proximity between those two events is most relevant when the alleged attenuating factor was a volitional act by the defendant, such as resisting arrest or flight, because in such cases a brief lapse of time makes it more likely the search was the product of the detention itself.” (People v. Durant (2012) 205 Cal.App.4th 57, 65, citing Brendlin, supra, 45 Cal.4th at p. 270.) Pinheiro’s challenged interaction with defendant immediately preceded the discovery of the challenged evidence. That factor weighs in favor of suppression, albeit not particularly strongly.

As to the second factor, we assess whether defendant’s parolee status constituted an “ ‘intervening circumstance.’ ” (Brendlin, supra, 45 Cal.4th at p. 269.)

Defendant contends that the attenuation doctrine is not applicable here because both Brendlin and Strieff involved preexisting arrest warrants of which the officer was unaware at the time of the detention as the intervening circumstance, but defendant had no active arrest warrants. That distinction is not meaningful in this context. Existence of an arrest warrant requires officers to make an arrest and allows a subsequent search incident to arrest, both without independent probable cause. (See Brendlin, supra, 45 Cal.4th at p. 271.) Like the arrest warrant in Brendlin, defendant’s parolee status also rendered him searchable without probable cause[5] and that search condition was not “reasonably subject to interpretation” (although it may be subject to abuse in some situations, as we discuss with regard to the third factor). (Id. at p. 271.) Discovery of a defendant’s search condition after an initial unlawful detention is an independent circumstance that can overcome the original taint of the unlawful detention. (See People v. Durant, supra, 205 Cal.App.4th at p. 66.)

The third factor—the most significant factor—directs the court to consider the flagrancy or purposefulness of the misconduct. It “is generally regarded as the most important because ‘it is directly tied to the purpose of the exclusionary rule—deterring police misconduct.’ ” (Brendlin, supra, 45 Cal.4th at p. 271.) “For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure.” (Strieff, supra, 579 U.S. at p. 243, citing Kaupp v. Texas (2003) 538 U.S. 626, 628, 633 [finding flagrant violation where a warrantless arrest was made in the arrestee’s home after police were denied a warrant and at least some officers knew they lacked probable cause].)

At present, it remains undecided whether parking behind a suspect and using a spotlight to illuminate that suspect constitutes a detention. Assuming, without deciding—as we have—that a Fourth Amendment violation has occurred, Pinheiro could not have known that his conduct would violate the Fourth Amendment. This is not a situation where an officer, as defendant has described, purposefully conducted a random vehicle detention for the purpose of locating a probationer or parolee with search terms.[6] Moreover, Pinheiro’s other conduct in the interaction with defendant (asking for his identification rather than demanding it and not obstructing defendant’s ability to drive away) were consistent with a consent encounter, as we described above. We find no indication in the record that Pinheiro’s conduct was pretextual or in bad faith. (Brendlin, supra, 45 Cal.4th at p. 271.) We find nothing flagrant or purposeful about Pinheiro’s conduct.

Based on the application of the factors discussed above, even assuming Pinheiro’s interaction with defendant constituted an unlawful detention, no suppression of the evidence obtained in the parole search was required.

DISPOSITION

The judgment is affirmed.

* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Because defendant raises only a suppression issue on appeal, we provide a summary only of the facts presented at the hearing on defendant’s initial motion to suppress.

[3] Miranda v. Arizona (1966) 384 U.S. 436.

[4] Defendant argues that the matter should be remanded for the trial court to rule on the attenuation doctrine issue in the first instance. Defendant is mistaken. Our Supreme Court in Brendlin considered a similar argument and concluded that “[a]lthough the People may not have asserted that the discovery of the [intervening circumstances] justif[ied] the search, they did introduce evidence of the [intervening circumstances] at the suppression hearing and did argue that the search was authorized by the deputy’s discovery that defendant was a parolee.” (Brendlin, supra, 45 Cal.4th at p. 267, fn. 1.) The same is true here. Thus, here, as in Brendlin, there is “no bar to our consideration of the claim of attenuation for the first time on appeal [because] the record is sufficient to support such a finding.” (Ibid.)

[5] “Under California statutory law, every inmate eligible for release on parole ‘is subject to search or seizure by a ... parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.’ (Pen.Code, § 3067, subd. (b)(3).)” (People v. Schmitz (2012) 55 Cal.4th 909, 916.)

[6] To be clear, this case should not be read for the proposition that discovery of a suspect’s search terms after an unlawful detention can always cure the taint to the unlawful detention. It does not stand for that proposition.