Opinion
D071427
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DEVIN ROSARIO, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE357816) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Reversed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
One night, following a report of a vehicle stopped on the shoulder of a road, a police officer appropriately decided to check on the welfare of the driver, defendant Joshua Rosario. After pulling his patrol vehicle behind the stopped car and activating his emergency lights, the officer quickly determined the car was not disabled and Rosario was not in distress, but instead that he had stopped to drop off a friend. The officer nonetheless continued the encounter by asking for Rosario's identification, taking the license, and returning to his patrol vehicle to perform a records check.
We conclude that at least at the moment when the officer returned to his patrol vehicle holding Rosario's driver's license, an objectively reasonable person would not have felt free to leave. From that point forward, Rosario was detained. Because the officer admitted he did not suspect any wrongdoing at that time, we further conclude that Rosario was detained without any reasonable suspicion of wrongdoing in violation of the Fourth Amendment. It was only after the officer returned from performing the records check that he smelled alcohol on Rosario's breath, leading to the discovery of evidence supporting Rosario's subsequent conviction for driving under the influence of alcohol. Accordingly, we reverse the denial of his motion to suppress evidence.
FACTUAL AND PROCEDURAL BACKGROUND
One night, shortly before 10:00 p.m., Sergeant Jeff Raybould of the La Mesa Police Department was on patrol when another police officer reported a possibly disabled vehicle on Lake Murray Boulevard near Interstate 8. Raybould drove to the location of the disabled car in his marked police SUV.
Raybould testified that his intent in responding to the car was to check on the welfare of the driver and see if the car was disabled, was blocking traffic, or needed to be towed. His report of the incident did not mention any violation of the Vehicle Code based on the location of the stopped car. He later testified he was not investigating any Vehicle Code violation when he approached the car. When Raybould arrived, he saw a sedan stopped on the right-hand shoulder of northbound Lake Murray Boulevard, just before a freeway on-ramp. The sedan's emergency flashing lights were activated.
Raybould pulled his patrol SUV behind the car and initially activated "all of [his] lights." From a photograph taken at the scene, Raybould identified that he "at least" activated his "forward spotlights, additional lights from the grill, and the rear ambers and one light to the front." At least one of the forward-facing lights was red. He could not recall if he also activated his "full" lights used for a traffic stop. He did not activate his siren at any time.
Raybould got out of his vehicle and approached the driver's side of the parked car. He was wearing a police uniform and, although armed, did not draw his firearm. When he reached the car, he could hear the engine running. He saw two men sitting in the front seats of the car. Rosario was in the driver's seat.
Raybould could see that Rosario and his passenger were smoking cigarettes, which filled the car with smoke. Raybould identified himself and asked Rosario if everything was okay. Rosario replied that everything was fine. He had merely stopped to have a conversation with his friend before dropping him off. Raybould then asked for identification, which Rosario handed over. Raybould took Rosario's driver's license, walked back to his vehicle, and performed a records check via radio.
Over the radio, Raybould learned that Rosario's license was suspended, but that Rosario may not have received notice of the suspension. Raybould returned to the car and ultimately asked Rosario to step out of the car "so that we could talk about the license suspension a little bit more."
The record is not clear regarding the true status of Rosario's driver's license. It appears Raybould discovered the license was suspended, but that service of notice of the suspension had been returned unclaimed. (See Veh. Code, § 13106, subd. (a) [presumption of knowledge of a suspended or revoked driver's license established only if notice of suspension or revocation is served via first class mail and not returned as undeliverable or unclaimed].) Here, it appears Rosario did not have knowledge of the suspension and, therefore, could not be guilty of knowingly driving with a suspended license. (Veh. Code, § 14601.2, subd. (a).) Indeed, although Rosario was initially charged with driving with a suspended license, the charge was dismissed by the prosecution before the preliminary hearing. As we discuss, whether Rosario was illegally driving with a suspended license does not affect our analysis because Raybould detained Rosario before he had any idea the license was suspended.
By the time Raybould returned to Rosario's car, the cloud of cigarette smoke had dissipated and, for the first time, Raybould smelled alcohol on Rosario's breath The officer asked Rosario if he had been drinking, which Rosario initially denied. Raybould conducted a series of field sobriety tests, the results of which led him to suspect Rosario had been driving under the influence of alcohol. Rosario was then arrested.
After he was charged with driving under the influence, Rosario moved to suppress all evidence resulting from his interaction with Raybould on the basis that it was an unlawful search and seizure. (Pen. Code, § 1538.5.) The trial court denied the motion, characterizing the initial interaction as a consensual welfare check that was not unduly prolonged before Raybould developed probable cause to arrest Rosario for driving under the influence.
A jury subsequently found Rosario guilty of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving while having a blood alcohol level of 0.08 percent by weight or higher (Veh. Code, § 23152, subd. (b).). Due to Rosario's prior convictions for driving under the influence, his current offenses were felonies. (Veh. Code, § 23550.) One of his prior offenses was also alleged to be a prison prior as defined by Penal Code sections 667.5, subdivision (b) and 668, which Rosario later admitted. The court sentenced Rosario to an aggregate term of three years.
DISCUSSION
On appeal, Rosario challenges only the denial of his motion to suppress. In our review of the trial court's ruling on a suppression motion, we defer to the court's factual findings if supported by substantial evidence, but "independently assess the legal question of whether the challenged search or seizure satisfies the Fourth Amendment." (People v. Brown (2015) 61 Cal.4th 968, 975.) Here, the underlying factual scenario is not in dispute. Thus, the issue is limited to whether, considering the totality of the circumstances, there was an unlawful detention.
I
"Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
On appeal, Rosario concedes his initial interaction with Sergeant Raybould was consensual. "An officer may approach a person in a public place and ask if the person is willing to answer questions" without the interaction constituting a seizure. (People v. Brown, supra, 61 Cal.4th at p. 974.) The interaction may be consensual even if an officer parks behind a stopped vehicle and activates his emergency lights. "[A] motorist whose car has broken down on the highway might reasonably perceive an officer's use of emergency lights as signaling that the officer has stopped to render aid or to warn oncoming traffic of a hazard, rather than to investigate crime." (Id. at p. 980.)
Even if it was not truly consensual, as Rosario suggested below, there is no doubt Raybould acted reasonably by briefly detaining Rosario to check on his welfare. Police officers regularly perform "community caretaking functions," including helping stranded motorists, that are distinct from their role in investigating crimes. (People v. Madrid (2008) 168 Cal.App.4th 1050, 1056, citing People v. Ray (1999) 21 Cal.4th 464, 467 (Ray).) In Madrid, the court concluded that the community caretaking exception could apply to justify a traffic stop even without a suspicion of wrongdoing. (Madrid. at p. 1058.)
As Raybould testified, he originally parked behind Rosario's car to determine whether the car was disabled and needed to be towed. He then walked toward Rosario to ask if he was okay. By this time, he also observed that the car's engine was running. These actions did not result in an unreasonable seizure because it was either a consensual encounter or a reasonable welfare check.
This does not mean, however, that all of Raybould's subsequent actions are beyond review. What begins as a consensual encounter between an individual and a police officer may cross the line into a detention "when an officer intentionally applies physical restraint or initiates a show of authority to which an objectively reasonable person innocent of wrongdoing would feel compelled to submit, and to which such a person in fact submits." (People v. Linn (2015) 241 Cal.App.4th 46, 57 (Linn).)
Similarly, even if Raybould detained Rosario under the community caretaking exception, once he determined that Rosario and his passenger were not in distress, he was not justified in continuing the detention absent articulable circumstances that gave rise to a reasonable suspicion of criminal activity. Under the community caretaking exception, an officer's conduct is necessarily "limited to achieving the objective which justified the [detention]—the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance . . . and to provide that assistance." (People v. Ray, supra, 21 Cal.4th at p. 477.)
Assuming there was an initial detention permitted by the community caretaking exception, the question becomes whether Raybould continued the detention after he concluded Rosario was not in distress and his car was not disabled. In the context of police interactions with drivers, it is often a simple and straightforward matter to determine when a detention occurs. Generally speaking, the stereotypical traffic stop unambiguously constitutes a detention: a police officer initiates a show of authority consisting of the activation of emergency lights and possibly a siren, followed by the driver submitting to the show of authority by pulling over.
In other circumstances, like the one presented here, the officer's actions may be ambiguous and a person's passive acquiescence in response is not an obvious submission. In such a scenario, the test for determining whether a seizure occurs, first devised by Justice Potter Stewart and later revised by the Supreme Court, focuses on whether, " 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave,' or 'would feel free to decline the officers' requests or otherwise terminate the encounter.' " (Brendlin v. California (2007) 551 U.S. 249, 255 ; quoting United States v. Mendenhall (1980) 446 U.S. 544, 554 and Florida v. Bostick (1991) 501 U.S. 429, 436 .)
There are no bright-line rules when applying this test to distinguish between a consensual encounter and a detention. (Linn, supra, 241 Cal.App.4th at p. 59.) " ' "The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." ' [Citations.] There is not 'a litmus-paper test for distinguishing a consensual encounter from a seizure,' but, rather '[t]here will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment.' " (Ibid.)
Here, Rosario contends the encounter "morphed" into a detention when Raybould requested his identification and, after receiving it, took the license and returned to his police vehicle. There is no doubt that an officer may ask a person for identification without implicating the Fourth Amendment and, if voluntarily provided, the identification may also be examined the officer. (Hiibel v. Sixth Judicial Dist. Ct. (2004) 542 U.S. 177, 185 ; I.N.S. v. Delgado (1984) 466 U.S. 210, 216-217 .) It is likewise clear that as part of an otherwise valid traffic stop (based on reasonable suspicion that violation of a motor vehicle law has occurred), an officer may take the already-detained driver's identification and conduct a check for outstanding warrants or make other inquiries so long as the inquiry does not measurably extend the duration of the stop. (Rodriguez v. United States (2015) 575 U.S. ___ [135 S.Ct. 1609, 1615]; see also People v. Brown (1998) 62 Cal.App.4th 493, 498.)
Here, however, Rosario was not "otherwise subject to seizure for violation of law," and that is a critical distinction. (See Delaware v. Prouse (1979) 440 U.S. 648, 663.) The Supreme Court has not specifically determined whether an officer under those circumstances may request and retain a person's identification for purposes of a random records check without implicating the Fourth Amendment. But several California cases have considered situations where a police officer requests and receives an identification card.
At least one case arguably treated the taking of an identification card as the critical, if not sole, factor in establishing that a detention occurred. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) As the Castaneda court explained, "[a]lthough Castaneda was not restrained by the officer asking for identification, once Castaneda complied with the request and submitted his identification card to the officers, a reasonable person would not have felt free to leave." (Ibid.)
After Castaneda, a progression of cases reached a different conclusion, holding that the mere taking of an identification card, in the absence of other factors, does not create a detention. (See, e.g., People v. Leath (2013) 217 Cal.App.4th 344, 353; People v. Jenkins (2004) 119 Cal.App.4th 368, 374; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) These cases, however, did not involve situations where an officer asked for identification, received the identification, and then walked away with it.
Linn, supra, 241 Cal.App.4th 46 is the most recent California case to consider the situation where an officer requests identification outside the context of a traffic stop. In Linn, the court similarly rejected a bright-line rule or "litmus-paper test" that an officer's taking of a voluntarily offered identification card conclusively establishes that a detention occurred. (Id. at p. 63.) The court nonetheless affirmed the granting of a suppression motion, reasoning that when the taking of an identification card was combined with other factors present in that case, an objectively reasonable person in defendant's position would not have felt free to leave. The police officer in Linn observed a passenger in a car flicking ashes from a cigarette out a window, an action the officer understood to violate the Vehicle Code. (Id. at p. 51.) After the car parked, the officer, in full uniform, stopped his motorcycle near the car but "did not turn on lights or sirens, block defendant's pathway, display his weapon, or comment about whether the two were free to leave." (Ibid.) The officer asked the passenger why he was flicking ashes out the window. (Ibid.)
Turning his attention to the driver, the officer asked to see her identification. (Linn, supra, 241 Cal.App. at p. 51.) After the driver handed over her license, "he took it and held it in his hand as he called dispatch and ran a record check." (Id. at p. 52.) The officer asked the driver about the passenger's behavior and then began to fill out a form as he continued to ask questions. (Id. at pp. 52-53.) The defendant testified that the officer also asked her to put her cigarette out and to put down a can of soda she was drinking. (Ibid.) On appeal, the court concluded that an objectively reasonable person in this situation would not feel free to leave. (Id. at pp. 64-67.) In reaching this conclusion, the court found the officer's retention of the defendant's license particularly significant. "We cannot conclude that an objectively reasonable person in the present circumstances would feel free either to walk away without her driver's license or to interrupt [the officer]'s investigation to ask for her driver's license to be returned so that she could leave." (Id. at p. 67; see also ibid. [citing "numerous well-reasoned cases in other jurisdictions" concluding that "an officer's taking of a person's identification card and retention of it while running a record check or engaging in further questioning weighs in favor of a finding of an unlawful detention"].)
Based on the undisputed facts of this case, we must determine whether an objectively reasonable person in the same position as Rosario would feel free to leave. Rosario was sitting in his car when a police SUV parked immediately behind his vehicle with multiple shining lights, including spotlights and at least one forward-facing red light directed at him. A fully uniformed officer then approached his car and stood at his window. After assuring the officer that he and his passenger were simply having a conversation and his car was not disabled, the officer nevertheless asked for Rosario's identification without explanation. After Rosario handed over his driver's license, the officer took the license and walked back to his patrol vehicle.
At that moment, an objectively reasonable person would not feel free to leave or otherwise terminate the encounter without permission. If Rosario decided to simply drive away, he would be illegally driving without a license and would also violate Vehicle Code section 2800.1, which prohibits a person from fleeing a peace officer's vehicle "exhibiting at least one lighted red lamp visible from the front." Even setting aside the legality of driving away, common sense suggests that reasonable people are not in the habit of willfully abandoning their driver's licenses. Alternatively, a reasonable person in that situation would likewise not feel free to exit his car without permission, walk toward a police officer inside his patrol vehicle, interrupt a radio call, and request the return of his license so that he could leave. (Linn, supra, 241 Cal.App.4th at p. 67.)
Moreover, if Raybould did not mean to forcibly detain Rosario, there was a simple solution. After examining the license he could have said, "Do you mind if I take this back to my patrol car for a moment to check on something?" That would have suggested Rosario had a choice in the matter. As it was, Raybould offered no choice and none was reasonably implied. A reasonable person would perceive Raybould's actions as a show of authority directed at Rosario, who submitted by staying in his car at the scene. Accordingly, under the totality of the circumstances, Rosario was detained at the time Raybould took his driver's license and returned to his patrol vehicle to perform a records check.
II
Having concluded that Rosario was detained, the next question is whether the detention was reasonable. By restraining the liberty of a person during a detention, an officer effects a seizure, which must be justified under the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1, 19 .) 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.) "The officer's subjective suspicion must be objectively reasonable, and 'an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.' " (People v. Wells (2006) 38 Cal.4th 1078, 1083.) In the words of Chief Justice Warren, "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which . . . reasonably warrant the intrusion" based on the officer's conclusion "that criminal activity may be afoot." (Terry v. Ohio, 392 U.S. at pp. 21, 30.)
Under the applicable test, we focus on the officer's articulated justification, judged objectively, as to why he suspected wrongdoing. But Sergeant Raybould admitted that at the time he stopped behind Rosario and ultimately asked for his identification, he was not investigating any crime or Vehicle Code violation. In his police report, he did not reference any Vehicle Code violation based on the location where Rosario stopped his car. He also candidly admitted that at the time he took Rosario's driver's license, he did not notice "any objective signs and symptoms of alcohol intoxication." When asked if he observed any behavior "that caused concern," Raybould could say only that "it just seemed odd that the two people in the vehicle, they were sitting there and there's a large cloud of smoke in the vehicle, and they were just having a conversation."
Raybould's testimony reflects that he harbored no objectively reasonable suspicion of wrongdoing. It is axiomatic that when a police officer does not reasonably suspect "criminal activity may be afoot," there can be no justification for the detention. Simply finding a situation to be "odd" does not justify the intrusion of a seizure. "The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' " (U.S. v. Sokolow (1989) 490 U.S. 1, 7 .)
At most, Raybould testified that stopping in the location of Rosario's car "could be possibly a violation of parking or standing upon a highway at an intersection." (Italic added. Raybould, however, did not testify that he held this suspicion at the time of his encounter with Rosario. Rather, he admitted he did not think about a Vehicle Code violation and only began to suspect wrongdoing—driving with a suspended license and driving under the influence—after he detained Rosario.
Moreover, his conduct at the time of the detention does not suggest he was acting out of any concern regarding the location of Rosario's vehicle once he determined it was on the shoulder of the road outside of the travel lane. Raybould initially arrived at the scene around 9:40 p.m. He quickly determined the car was not disabled, but instead of asking Rosario to move to a safer location, he continued to talk to Rosario and perform a records check with the car parked in the same location. There is also no evidence that Raybould informed Rosario he was stopped illegally or that he ever issued a citation for any Vehicle Code violation arising from the location where Rosario stopped. Although not dispositive, these facts reinforce the conclusion, based on Raybould's own testimony, that he did not suspect any criminal activity until after he detained Rosario.
To justify the detention, the People asked the trial court to consider the facts, as observed by Raybould, to discover whether there could be a possible Vehicle Code violation. This analysis, however, puts the cart before the horse. The test is not whether, sitting in court, the prosecution can assemble a set of facts that might suggest criminal activity. Instead, the analysis begins with the officer's articulated conclusion regarding his suspicion at the time of the detention and then proceeds to an objective analysis to determine whether those suspicions are reasonable. (See, e.g., U.S. v. Cortez (1981) 449 U.S. 411, 417-418 [considering the totality of the circumstances, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity."]; People v. Wells, supra, 38 Cal.4th at p. 1078 ["The officer's subjective suspicion must be objectively reasonable."].)
Regardless, the People cannot establish any objectively reasonable suspicion of wrongdoing at the time of the detention. The prosecution argued in opposition to the motion to suppress that Raybould could detain Rosario for violating Vehicle Code section 21718, which states "no person shall stop, park, or leave standing any vehicle upon a freeway which has full control of access and no crossings at grade." The prosecution did not argue Rosario was on a freeway, but rather on a freeway on-ramp, and it is hardly clear that section 21718 applies to on-ramps. In any event, Raybould testified that the sedan was not stopped on the on-ramp, but "just prior to it."
On appeal, the Attorney General takes a new tack by suggesting that Rosario's car was indeed stopped on the freeway. This contention, however, is belied by the evidence. Raybould testified that the car was stopped on Lake Murray Boulevard near a freeway. No evidence supports a conclusion that Lake Murray Boulevard is itself a freeway. Moreover, Raybould testified that Rosario's car was stopped near the intersection with Parkway Drive, but Vehicle Code section 21718 applies only to freeways "with no crossings at grade."
The Attorney General argues that regardless of whether the car was actually on a freeway, "a reasonable mistake of law will not render an otherwise valid traffic stop illegal. (Heien v. North Carolina (2014) 574 U.S. ___, 135 S.Ct. 530, 534.)" We do not disagree with the Attorney General's statement of the law. This legal principle, however, presupposes that an officer actually made a reasonable mistake of law. (Heien, at p. 536 ["Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground."].) Here, there is no evidence that Raybould believed Rosario was stopped on a freeway or, at the time of the incident, harbored any suspicion regarding any Vehicle Code violation. With no suspicion of wrongdoing, either correct or reasonably mistaken, there is no justification for the detention. Moreover, as applied to Raybould's articulated observations, it would not be objectively reasonable to believe that the road on which Rosario was stopped was a "freeway which has full control of access and no crossings at grade." (Veh. Code, § 21718.)
We accordingly conclude that when he returned to his patrol vehicle with the driver's license, Raybould was detaining Rosario within the meaning of the Fourth Amendment. Because there was no reasonable suspicion that Rosario was involved in any criminal activity, the detention was unlawful. The trial court erred when it found otherwise and denied the motion to suppress.
Although exceptions to the exclusionary rule exist, the Attorney General does not argue that any of those exceptions should be applied here. Accordingly, admission of the challenged evidence violated Rosario's Fourth Amendment rights. Such an error is prejudicial unless the People show, beyond a reasonable doubt, that the error did not contribute to the verdict. (See Chambers v. Maroney (1970) 399 U.S. 42, 52-53 ; see also People v. Sims (1993) 5 Cal.4th 405, 475; People v. Avila (1995) 35 Cal.App.4th 642, 654.) The Attorney General does not attempt to make such a showing and, given the nature of the challenged evidence, the prejudicial effect is obvious.
DISPOSITION
The judgment is reversed with directions to grant the motion to suppress.
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.