Filed 4/30/18 P. v. Wejbe CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Appellant,

v.

MATTHEW RYAN WEJBE,

Defendant and Respondent.


G054889

(Super. Ct. No. 15CF1528)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Reversed and remanded.
Tony Rackauckas, District Attorney, and John R. Maxfield, Deputy District Attorney, for Plaintiff and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Respondent.


Respondent Matthew Wejbe was charged with multiple crimes after he was found in possession of stolen property during a police encounter. There is no dispute he was unlawfully detained at the outset of the encounter. The only question is whether the Fourth Amendment’s exclusionary rule requires suppression of the stolen property on that basis. Answering that question in the affirmative, the trial court dismissed the charges against Wejbe. On appeal, the People contend the attenuation and inevitable discovery exceptions to the exclusionary rule apply so as to salvage the case. We agree that intervening circumstances attenuated the taint of Wejbe’s unlawful detention. Therefore, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Around midnight, Tustin Police Officers Michael Van Cleve and Matthew Howard were on routine patrol when they noticed Wejbe placing things into the trunk of a Volkswagen Passat in the parking lot of a motel. Although the motel is located in a high-crime area, the officers did not have any reports of criminal activity there that night. Nonetheless, they pulled up to Wejbe, exited their squad car and asked if they could talk to him. Upon noticing the officers, Wejbe closed the trunk and began walking toward the Passat’s driver’s door, which was open. Fearing for his safety, Van Cleve ordered Wejbe to step away from the car. He told Wejbe either, “Hey, stay away from the driver’s door. I don’t know if you have any weapons” or “Don’t enter the vehicle. We don’t know if you have any weapons.” Either way, Wejbe stopped and turned to face the officers.
Van Cleve asked him if he was on probation or parole, and Wejbe said he had just recently been released from probation. As they spoke, Van Cleve told him to keep his hands still, but Wejbe kept reaching for his pockets, so Howard grabbed his wrist and patted him down to make sure he did not have any weapons. During the pat down, Howard felt a pipe in Wejbe’s back pocket. He inquired whether it was for smoking methamphetamine, and Wejbe said yes. With Wejbe’s permission, Howard then seized the pipe. He asked when Wejbe last smoked methamphetamine, and was told a few days earlier. However, Wejbe denied having any other illegal items in his possession.
When Howard asked Wejbe if he could search him, the answer was, “I guess.” The search turned up a Best Buy credit card in the name of Michael Vitello. Howard asked who Vitello was, and Wejbe said he did not know. He claimed he found the credit card inside the Passat and that he had recently purchased the vehicle from a tow yard in Santa Ana. He also said he had tried unsuccessfully to contact Vitello or return the credit card to Best Buy.
Howard sat Wejbe down in the parking lot and continued to investigate. Using the Passat license’s number, he ran a records check on the vehicle and discovered that while the car had not been reported stolen, neither was it registered to Wejbe. The car was registered to two women from Norwalk. Asked whether he had any documentation to prove the Passat was his, Wejbe said the paperwork was at his house.
Howard looked inside the car and noticed the VIN on the dashboard had been removed. He also saw another credit card in Vitello’s name on the driver’s seat and other items in the car, including a backpack, suitcase and bicycle. Asked about those items, Wejbe said he had recently been kicked out of his home in Los Angeles and was in the process of moving. Then he said he was helping a friend move some of his belongings. When Howard asked if there was anything illegal in the car, Wejbe said “there shouldn’t be.” Howard then asked if he could search the car, and Wejbe said, “I guess.” Upon searching the vehicle, Howard found several items of stolen property and drug paraphernalia.
Wejbe was charged with unlawfully possessing those items and various theft-related crimes. Prior to trial, he moved to suppress all of the evidence that was discovered during the encounter on the basis he was illegally detained when Van Cleve ordered him to step away from the Passat at the outset of the encounter. The prosecutor did not dispute Wejbe was illegally detained by virtue of Van Cleve’s order. In fact, he commendably conceded that if he had been in Wejbe’s shoes when Van Cleve gave his order, he would not have felt free to leave, which is the test for when a detention occurs under the Fourth Amendment. (United States v. Mendenhall (1980) 446 U.S. 544, 554.) But he asserted suppression of the evidence discovered in the Passat was not required because Wejbe did not have a reasonable expectation of privacy in the vehicle. At the suppression hearing, the prosecutor introduced a Department of Motor Vehicles printout to substantiate this assertion. Consistent with the records check that was conducted at the scene, the printout shows the Passat is registered to two women in Norwalk; there is nothing on the printout connecting the vehicle to Wejbe.
In response to the printout, defense counsel offered to call Wejbe as a witness for the limited purpose of proving his ownership of the Passat. The court ruled that unnecessary because it felt the search of the Passat was inextricably interwoven with Wejbe’s detention. In other words, the court determined Wejbe’s purported lack of ownership of the Passat did not preclude him from challenging its search.
Alternatively, the prosecutor argued the taint from Wejbe’s illegal detention was attenuated by the officers’ discovery the Passat was not registered to him. The prosecution argued this discovery was an intervening circumstance that justified the search of the Passat. He also asserted that because the officers could have run a records check on the Passat and discovered this information without having to detain Wejbe, they would have inevitably discovered all of the contraband in the vehicle, even if Wejbe had not been detained. Unpersuaded by the prosecutor’s attenuation and inevitable discovery arguments, the trial court granted Wejbe’s suppression motion and dismissed the charges against him for lack of evidence.


DISCUSSION
The People contend the trial court legally erred in granting Wejbe’s suppression motion. Exercising our independent judgment on the issue (People v. Weaver (2001) 26 Cal.4th 876, 924), we agree.
As they did in the trial court, the People contend Wejbe lacks standing to challenge the search of the Passat. Generally, “an individual cannot challenge the introduction of evidence obtained in an allegedly unlawful search unless the individual had a reasonable expectation of privacy in the object seized or the place searched. [Citation.]” (Brewer v. Superior Court (2017) 16 Cal.App.5th 1019, 1023.) And in light of the evidence the Passat was not registered to Wejbe and may have been stolen, we can understand why the People have questioned his privacy interest in the vehicle. However, Wejbe is not challenging the search of the Passat in and of itself. Rather, he contends the items found in the vehicle should be suppressed because they were derived from his illegal detention. Under these circumstances – where he is asserting his own rights were violated – Wejbe may challenge the evidence found in the Passat even if he lacked a reasonable expectation of privacy in the vehicle. (Id. at pp. 1024-1025.)
Turning to the merits, the People assert the officers had legal justification to detain Wejbe and search the Passat based on the circumstances that arose after they initially detained him. This may be true, but it misses the point of Wejbe’s argument that those circumstances flowed from his illegal detention. The central question in this case is not whether events subsequent to Wejbe’s initial detention provided theoretical justification for the officers’ actions but whether those events were sufficiently attenuated so as to break the chain of causation extending from the detention to the discovery of the stolen property. We think they were.
In a criminal trial, the exclusionary rule prohibits the admission of evidence that was obtained in violation of the Fourth Amendment. (Mapp v. Ohio (1961) 367 U.S. 643.) The rule – which applies equally to evidence obtained directly from the violation and evidence that is subsequently derived therefrom, known as “fruit of the poisonous tree” (Wong Sun v. United States (1963) 371 U.S. 471, 487) – is designed to deter police misconduct and thereby effectuate the purpose of the Fourth Amendment. (United States v. Calandra (1974) 414 U.S. 338, 347; People v. Macabeo (2016) 1 Cal.5th 1206, 1220.)
But not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a 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.’ [Citation.]” (Wong Sun v. United States, supra, 371 U.S. at pp. 487-488.) In the latter situation, suppression is not required because the link between the illegality and the challenged evidence has become so attenuated it would not further the interest of deterrence to apply the exclusionary rule. (Hudson v. Michigan (2006) 547 U.S. 586, 593.)
Three factors guide our analysis of whether the attenuation exception applies in a given case: 1) The temporal connection between the unlawful police action and the discovery of the subject evidence; 2) the presence of any intervening circumstances; and 3) the purpose and flagrancy of the officer’s misconduct. (Utah v. Strieff (2016) __ U.S. __, 136 S.Ct. 2056, 2062 (Strieff), citing Brown v. Illinois (1975) 422 U.S. 590, 603-604; People v. Brendlin (2008) 45 Cal.4th 262, 269 (Brendlin).) When, as here, the evidence in question is discovered within minutes of the unlawful police action, the first – but least determinative – factor favors suppression. (Strieff, supra, 136 S.Ct. at p. 2062.)
The second factor requires us to examine what transpired between the initial illegality and the discovery of the challenged evidence. If new circumstances arose that provided an independent justification for the officers’ actions, this circumstance will militate against suppression. Such was the case in Strieff and Brendlin, supra. In those two cases, the police ran a warrant check during an unlawful detention and discovered the defendant was subject to lawful arrest based on a judicially issued warrant. Because that discovery was unrelated to the defendant’s detention, the courts found it to be a compelling intervening circumstance for purposes of the attenuation exception. (Strieff, supra, 136 S.Ct. at p. 2062; Brendlin, supra, 45 Cal.4th at p. 271; see also People v. Durant (2012) 205 Cal.App.4th 57, 66 [officers’ discovery the defendant was on probation favored application of the attenuation exception because it “supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop.”].)
Here, the People contend “the officers had independent probable cause to search the car once they discovered [it] was not registered to [Wejbe], saw that the VIN had been removed from the car, and saw, in plain view, the credit card in Michael Vitello’s name on the driver’s seat. This was an independent intervening event that purged the taint of any allegedly prior illegality.” The People also cite Wejbe’s “voluntary consent” as an independent justification for the car search.
We do not believe Wejbe’s consent to search the Passat constitutes an intervening circumstance. To say his consent was voluntarily rendered is to ignore how the stop played out. Wejbe clearly wanted to depart the scene in the Passat when he saw the officers. But when the officers issued their illegal command for him to stop, he complied and was immediately subjected to pointed questioning and a patdown. It was only after the questioning, the patdown, and the seizure of incriminating evidence from Wejbe that the officers asked him if they could search the Passat. Wejbe’s reply, “I guess,” strikes us as more a capitulation to authority than a genuine expression of free will. (See People v. Machupa (1994) 7 Cal.4th 614, 618 [consent invalid where the defendant responded “‘I guess” after officers asked if they could accompany him into his house].) It was not an intervening circumstance unrelated to Wejbe’s illegal detention.
However, in contrast to Wejbe’s purported consent, the officers’ actions in running the records check and looking into the Passat were unconnected to the unlawful detention. Whereas the detention was designed to prevent Wejbe from going into the car to get or use a weapon, the records check and visual examination of the Passat’s interior were undertaken to ascertain who owned the vehicle. Those actions, which provided the officers with an independent basis to continue their investigation, were not influenced by the unlawful detention the way Wejbe’s consent was. Moreover, we are unable to discern any meaningful distinction between the records check that occurred in this case and the warrant checks that took place in Strieff and Brendlin. While different in kind, the checks were identical in that they were both unrelated to the unlawful police conduct that occurred. Thus, the intervening circumstances factor supports admission of the subject evidence in this case.
The third and final factor bearing on the applicability of the attenuation exception is “the flagrancy and purposefulness of the police misconduct” at issue. (Brendlin, supra, 45 Cal.4th at p. 271.) This is the most important factor (ibid.), and here there is no evidence the officers acted in bad faith in illegally detaining Wejbe at the scene. Rather, it appears Van Cleve was motivated by safety concerns when he ordered Wejbe to step away from the Passat. That order was illegal for lack of reasonable suspicion, but because the officer’s conduct was “at most negligent” it would not serve the purpose of the exclusionary rule to apply the rule in this situation (see Strieff, supra, 136 S.Ct. at p. 2063 [although unlawful, defendant’s detention was for officer safety, not a sign of flagrant police misconduct that needed to be reined in through application of the exclusionary rule]) and would suggest officers must subject themselves to danger unnecessarily in order to avoid an unalterable mistake.
Wejbe fails to recognize this point. Instead, he insists that suppression is required because had the officers not illegally detained him in the first place, they would not have discovered any legal basis to search the Passat. However, as we have explained, “[E]xclusion may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.” (Hudson v. Michigan, supra, 547 U.S. at p. 592.) Based on our analysis of the factors governing application of the attenuation exception to the exclusionary rule – particularly the absence of bad faith by the officers involved in Wejbe’s detention – we conclude the exception applies and there is no basis to apply the rule in this case. Accordingly, the trial court erred in granting Wejbe’s motion to suppress and dismissing the case.
DISPOSITION
The judgment is reversed and the matter is remanded for proceedings consistent with this opinion.



BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.