Filed 9/4/18 P. v. Beene CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Trinity)

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Defendant Ethan Obediah Sterrenberg Beene pleaded no contest to driving with a blood-alcohol level of 0.08 percent or greater. (Veh. Code, § 23152, subd. (b)—count two.) The trial court imposed a three-year county jail term.

On appeal, defendant contends his suppression motion was erroneously denied. Finding the officer lacked a description of defendant sufficiently particular to support the traffic stop, we shall reverse and remand for additional proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

We take the facts from the preliminary hearing, which also served as a hearing on the suppression motion. The only evidence presented by the People was through the testimony of the officer who conducted the traffic stop and investigation, California Highway Patrol Officer Justin Danel.

Around 2:17 p.m. on May 1, 2016, Officer Danel was on road patrol, traveling westbound on Highway 299 in Trinity County, near the Humboldt County line. He saw a blue Chevrolet Silverado pickup truck traveling eastbound on Highway 299. Officer Danel testified he was familiar with the driver, defendant. Asked how he was familiar with the driver, Officer Danel replied: “The driver of the vehicle was described as Ethan Beene. I have taken numerous citizen complaints that he is driving under the influence of alcohol, driving erratic. I also investigated a collision six months prior—approximately six months prior, where he was arrested for DUI out of that crash. And I had prior knowledge that he was—his driver’s license had been suspended or revoked.” He never saw defendant at the scene of the collision six months prior.

Within the last year, there had been about five citizen complaints about defendant personally made to Officer Danel, with the last made two to three months before the May 1 incident. Asked how he knew the driver of the pickup was defendant, Officer Danel replied, “It was a White, slender male that I was—that the citizen’s complaint described to me.”

Officer Danel was familiar with defendant’s license being suspended because defendant received his fifth DUI arrest following the DUI crash Officer Danel investigated. The crash took place on June 7, 2015. Officer Danel determined defendant had no license at the time; that was the last time he checked defendant’s license. He did not know whether defendant’s license was subsequently reinstated. He did not check the status of defendant’s license after seeing him because, “typically, after five DUI arrests, you don’t get your license back.”

Officer Danel made a U‑turn and pursued the truck. When he caught up to the truck, it immediately made a left turn into a private driveway. Officer Danel drove up the road and parked on the right shoulder to see if the truck would pass his location again.

The truck eventually passed Officer Danel’s location. He followed it for about a mile to a mile and a half before making an enforcement stop. Before making the stop he saw the driver was a White, slender male as per the citizen’s complaint. Officer Danel contacted the driver, defendant. He advised defendant of the reason for the contact, and asked for defendant’s license and registration. Defendant provided an identification card; his breath smelled of alcohol. Officer Danel asked defendant to get out of his truck and then conducted a series of field sobriety checks as well as a preliminary screening test. Defendant provided two samples, which tested at 0.229 and 0.228 percent blood-alcohol content. Due to defendant’s performance on the field sobriety tests, Officer Danel concluded defendant was driving under the influence of alcohol. A records check conducted by his partner during the stop confirmed that defendant had five priors for driving under the influence (DUI).

Following Officer Danel’s testimony, the magistrate took judicial notice of two trailing probation violation cases.

The magistrate found defendant was on probation and subject to a search condition at the time of the stop. The magistrate found Officer Danel, having investigated defendant 11 months before and knowing defendant had five prior DUI’s, “reasonably believed that his license was suspended, and he saw him driving.” This allowed Officer Danel to pull over defendant, giving him an additional reason beyond the search condition. The magistrate denied the suppression motion.

Ruling on the renewal of the suppression motion accompanying the Penal Code section 995 motion,[1] the trial court found Officer Danel knew defendant was the driver, defendant’s vehicle had been described in previous complaints, and the record was replete with references to prior DUI’s and incidents allowing the officer to infer defendant’s license was suspended. Based on these findings, the trial court denied the motion.

DISCUSSION

Defendant contends the denial of his suppression motion was erroneous.

A criminal defendant may challenge the reasonableness of a search or seizure by moving to suppress evidence at a preliminary hearing. (People v. McDonald (2006) 137 Cal.App.4th 521, 528; § 1538.5, subd. (f)(1).) If the defendant is unsuccessful at the preliminary hearing, he must raise the search and seizure issue before the superior court by a motion to dismiss under section 995 or in a special hearing under section 1538.5 to preserve the issue for appellate review. (People v. Romeo (2015) 240 Cal.App.4th 931, 941 (Romeo).) Defendant followed the latter course here.

In a special hearing under section 1538.5, “the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing.” (Romeo, supra, 240 Cal.App.4th at p. 941.) “The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing.” (Ibid.)

On appeal from the trial court’s ruling, we are also bound by the magistrate’s factual findings so long as they are supported by substantial evidence. (Romeo, supra, 240 Cal.App.4th at p. 941.) We directly review the magistrate’s determination, drawing all presumptions in favor of the magistrate’s factual determination and considering the record in the light most favorable to the ruling. (Ibid.) We then judge the legality of the search by measuring the facts, as found by the trier, against the constitutional standard of reasonableness. (Id. at pp. 941-942.) We exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable. (Id. at p. 942.)

“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) Traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.) An officer may effect a traffic stop if based on reasonable suspicion that vehicle registration laws have been violated. (People v. Hernandez (2008) 45 Cal.4th 295, 300-301.) It is the prosecution’s burden to justify the warrantless stop once the issue is sufficiently raised by defendant. (People v. Smith (2002) 95 Cal.App.4th 283, 296.)

Of the two reasons given by the magistrate for denying the suppression motion, one clearly cannot support the ruling. While defendant was subject to a probation search condition, there is no evidence that Officer Danel knew about the condition when he stopped defendant’s truck. While the probation search condition is an exception to the Fourth Amendment’s warrant requirement, “the exception is inapplicable if police are unaware of the probation search condition at the time of a warrantless search.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184; see People v. Douglas (2015) 240 Cal.App.4th 855, 863 [because a search condition is not mandatory in every grant of probation, “in the case of probation searches, the officer must have some knowledge not just of the fact someone is on probation, but of the existence of a search clause broad enough to justify the search at issue”].) The search condition cannot justify the warrantless traffic stop here.

The only possible justification for the stop is that Officer Danel had reasonable suspicion defendant was driving on a suspended license. The supporting evidence for this inference consists of Officer Danel’s testimony that he identified defendant as the driver of the truck and believed he was driving on a suspended license, as well as the truck’s evasive maneuver after Officer Danel’s patrol car caught up with it. Neither alone nor together do these evidentiary points support the detention.

Officer Danel testified that he knew of defendant by name, due to investigating the 11-month-old DUI accident and from the five citizen complaints about defendant’s drunk driving, with the most recent being several months old. Officer Danel never testified that he knew defendant by sight or that he knew what type of vehicle defendant drove. The only information he had tying defendant to the driver of the truck he stopped was that the driver—defendant—fit the description given in the citizen complaints, a White, slender male.

“A vague description does not, standing alone, provide reasonable grounds to detain all persons falling within that description [citation].” (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382.) The three characteristics describing the suspect here are too vague and general to support reasonable suspicion that defendant was the person described in the citizen complaints. “But a number of courts have rejected the notion that reasonable suspicion for detaining someone may be based upon vague or general descriptions.” (People v. Walker (2012) 210 Cal.App.4th 1372, 1388.) For example, the detention of persons based on the description of three Black males committing burglaries in the area the previous day was unlawful because “[t]o hold otherwise would authorize the police to stop and question every [B]lack male, young or old, in an area in which a few [B]lack suspects were being sought. Such wholesale intrusion into the privacy of a significant portion of our citizenry would be both socially intolerable and constitutionally impermissible.” (In re Tony C. (1978) 21 Cal.3d 888, 898.) Likewise, in People v. Collins (1970) 1 Cal.3d 658, the Supreme Court expressed “grave doubts as to the lawfulness of” the defendant’s detention based upon the defendant matching the general description of a theft suspect associated with the area, who was Black, six feet tall, and 160 pounds. (Id. at p. 660.) Race and age alone were insufficient justification for the stop in Walker. (Walker, supra, 210 Cal.App.4th at p. 1388.) White, male, and slender are too vague and general to support a reasonable suspicion that defendant was the person described in the citizen complaints.

Defendant’s actions when Officer Danel’s patrol car approached him, turning into a private driveway and then subsequently leaving and resuming his original route, can be characterized as having a furtive nature. Nonetheless, they are an insufficient supplement to the vague and general description of defendant. The encounter between defendant and Officer Danel took place in the afternoon, he committed no traffic violations in turning into the driveway, and there was no evidence that this stretch of Highway 299 was a high-crime area. Turning off the state highway and into a private driveway is not necessarily evidence of flight or evasive conduct, as a driver could have turned into the private driveway for some other purpose, such as visiting the residence associated with the driveway. Since there is no testimony regarding how long defendant was in the driveway before he left, or whether he got out of his truck and reentered it at some later point, defendant’s pulling into the driveway is at best ambiguous evidence of furtive conduct.

Just as a vague, general description of the suspect does not support reasonable suspicion, furtive movements or gestures alone are insufficient to constitute reasonable suspicion that criminal activity is afoot. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827-828.) Combining at best ambiguous evidence of furtive activity with a vague and general description of the suspect does not support reasonable suspicion that the driver of the truck was the person described in the months old citizen complaints or that the driver might currently be engaged in criminal activity. Since associating the driver of the truck with defendant was the only possible valid justification for the stop, the stop was unlawful and the magistrate erred in denying the suppression motion. We accordingly decline to address defendant’s other ground for attacking the ruling, that Officer Danel was not reasonable in assuming defendant’s license was still suspended when he stopped him.

DISPOSITION

The judgment is reversed and the trial court is directed to grant the motion to suppress.

BUTZ , J.

We concur:

HULL , Acting P. J.

DUARTE , J.