Opinion
E067787
05-09-2018
In re S.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.O., Defendant and Appellant.
Forest M. Wilkerson, 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, and Barry J. Carlton and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J268362) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions. Forest M. Wilkerson, 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, and Barry J. Carlton and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
The juvenile court adjudged defendant and appellant, S.O., a ward of the court for unlawfully possessing a firearm in violation of Penal Code section 29610. S.O. filed a pretrial motion to suppress all evidence obtained during the search and seizure of his person. The court denied the motion to suppress, and S.O. admitted the charge against him. On appeal, S.O. argues law enforcement conducted an unlawful traffic stop of the car in which he was a passenger. The deputy in question stopped the car for failure to signal a right turn, which violated the Vehicle Code only if the turn may have affected other cars. (Veh. Code, § 22107.) We agree with S.O. that the evidence does not provide a lawful justification for the traffic stop. We therefore reverse with directions to grant the motion to suppress.
All further statutory references are to the Vehicle Code unless otherwise indicated.
II. FACTS AND PROCEDURE
In November 2016, the People filed a wardship petition charging 17-year-old S.O. with unlawful possession of a concealable firearm, a felony. (Pen. Code, § 29610.) S.O. moved to suppress all tangible and intangible evidence obtained during a search and seizure of his person, arguing the search and seizure were warrantless, without probable cause, and nonconsensual. The parties adduced the following facts at the evidentiary hearing on the motion.
One morning in August 2016, at around 11:00 a.m., San Bernardino County Sheriff's Deputy Guyon Foxwell was dispatched to the area of Foothill Boulevard and Interstate 15 in Rancho Cucamonga. As he was driving to the location, he spoke by phone to an Uber driver who had called 911. The caller had a passenger who had requested a ride from Rancho Cucamonga to Los Angeles. The caller refused the passenger because he believed the passenger intended to deliver illegal drugs, and the passenger had become upset. The caller recognized the passenger as someone he had previously driven to Los Angeles. On that prior ride, the caller found the passenger's behavior "suspicious," in that the passenger had made multiple stops and dropped off small, unknown items that he seemed to be hiding from view. Deputy Foxwell did not remember if the caller expressed any concerns about the present occasion, when he refused to drive the passenger. The caller said the passenger was wearing "a onsie-type, long sleeve, long pants outfit, with a hooded sweatshirt," even though it was a sunny day and around 90 degrees. The caller was watching the passenger as he talked to Deputy Foxwell on the phone and saw a silver Lexus sedan pick up the passenger, and the caller was worried about the safety of the Lexus driver.
While Deputy Foxwell was still on the phone with the caller, the deputy saw a silver Lexus exiting a parking lot on the north side of Foothill Boulevard. The Lexus was facing south, and the deputy was heading east. The deputy could see the front of the car. The Lexus turned west out of the parking lot toward Interstate 15. The driver failed to use the turn signal as the Lexus entered the roadway from the parking lot. Based on the failure to signal, the deputy pulled his patrol car behind the Lexus and conducted a traffic stop. He first spoke to the driver on the driver's side of the vehicle, who said she was an Uber driver and had just picked up a passenger who wanted a ride to Los Angeles. S.O. was the passenger. Deputy Foxwell asked S.O. if he had identification. S.O. said that he had lost it. He gave the deputy a name and date of birth, and the deputy returned to his patrol car to run a records check on his mobile data computer. The search returned no results.
The deputy then went to the passenger side of the Lexus and asked S.O. to step out so he could confirm S.O.'s identity, and S.O. complied. The deputy asked S.O. if he could conduct a search of S.O.'s person, and S.O. consented. He did not find anything on S.O. The deputy noticed a fanny pack on the seat where S.O. had been sitting. He leaned into the car and asked the driver if the fanny pack belonged to her, and she said it belonged to S.O. Deputy Foxwell picked up the pack and showed it to S.O., then asked if it belonged to him. When the deputy picked it up, he noticed something heavy inside that felt like a firearm. S.O. immediately became agitated and tried to grab the pack from the deputy. The deputy also asked if there were firearms inside the pack. S.O. replied the pack was his and there were firearms inside it. The deputy set the pack on top of the car, instructed S.O. to turn around and place his hands behind his back, and handcuffed S.O.
Deputy Foxwell then searched the pack and found two semiautomatic firearms inside of it. As Deputy Foxwell opened the pack, S.O. volunteered that the firearms were not his, and they belonged to a friend named Blake. S.O. gave the deputy Blake's phone number. The deputy called the phone number and spoke to a person who would not give his name and was uncooperative when the deputy asked him about the situation.
After the deputy's testimony, S.O. argued the deputy unlawfully detained him because there was no reasonable suspicion he was involved in any crime. He asserted the Uber driver who called 911 was working off assumptions, and moreover, the 911 caller was not present at the hearing for cross-examination. The prosecutor responded that S.O.'s motion did not specifically challenge the source of the information on which Deputy Foxwell relied, and without such notice, the People did not need to present evidence on that source. The prosecutor asked that, if the court was inclined to consider this argument, it grant the People an opportunity to bring in the 911 caller. In addition, she argued: "But my argument is basically that he did not rely on that in order to make the original detention, the vehicle stop. He saw a violation of the Vehicle Code and pulled it aside. And then at that point, I think the case law is clear, he has a duty then to do a little further investigation to ensure the safety of the officers and those around them, make sure that there are not any weapons available, ask preliminary questions." Later, again when discussing the 911 caller, the prosecutor also argued: "Certainly we would have a right to bring in the original person who supplied the information if this stop was even predicated on that, and it was not. It was predicated on a vehicle stop."
The court ruled Deputy Foxwell had lawfully stopped the Lexus because he had a reasonable suspicion the Lexus driver had violated the Vehicle Code by making a right turn without signaling. It also ruled the deputy had lawfully detained S.O. as an occupant of the lawfully stopped car, and there was no evidence of an unreasonable, prolonged stop. Moreover, S.O.'s fanny pack was in plain view, and he thus had no expectation of privacy in it. Lastly, the court ruled the deputy had probable cause to search the fanny pack based on feeling a possible firearm inside and S.O. trying to grab the pack. The court thus denied S.O.'s motion to suppress.
At the jurisdiction hearing, the court granted the People's motion to reduce the charge against S.O. to a misdemeanor. S.O. admitted the charge and the court found the allegations of the petition to be true. At the disposition hearing, the court declared him a ward of the court and placed him on one year of formal probation in his mother's custody.
III. DISCUSSION
S.O. contends the court erred in denying his motion because Deputy Foxwell stopped the silver Lexus without legal justification under the Fourth Amendment. We agree. The record does not supply a reasonable suspicion that the Lexus driver violated the Vehicle Code, which requires a turn signal only when the turn may affect other cars. In addition, the record does not supply a reasonable suspicion that criminal activity was occurring merely because S.O. may have aroused the suspicions of an Uber driver on an earlier unspecified date, nor does it supply a reasonable suspicion that the Lexus targeted by the deputy was the same Lexus carrying the purportedly suspicious Uber passenger.
"The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are 'unreasonable.'" (People v. Souza (1994) 9 Cal.4th 224, 229, citing Terry v. Ohio (1968) 392 U.S. 1, 19 & fn. 16.) Both the driver and passengers of a car are seized within the meaning of the Fourth Amendment when an officer conducts a traffic stop. (Brendlin v. California (2007) 551 U.S. 249, 251.) We treat an ordinary traffic stop as an investigatory detention. (People v. Durazo (2004) 124 Cal.App.4th 728, 734.) A temporary detention is reasonable when an officer has "a 'reasonable suspicion' that the suspect has committed or is about to commit a crime." (People v. Bennett (1998) 17 Cal.4th 373, 387.) As such, the Fourth Amendment "dictates that traffic stops must be supported by articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law." (People v. Durazo, supra, at p. 731.) The court considers whether these specific, articulable facts, in light of the totality of the circumstances, provide an objective manifestation that the driver or passenger may have violated the law. (People v. Souza, supra, at p. 231; People v. Logsdon (2008) 164 Cal.App.4th 741, 744.) A passenger is lawfully detained the same as the driver, and may be ordered out of the car, if the underlying traffic stop was lawful. (People v. Vibanco (2007) 151 Cal.App.4th 1, 9-10; People v. Bell (1996) 43 Cal.App.4th 754, 765.)
Welfare and Institutions Code section 700.1 permits minors in delinquency proceedings to move to suppress evidence obtained through an unlawful search or seizure. Once the minor establishes the search or seizure was warrantless, the People bear the burden of demonstrating a legal justification for the search or seizure. (People v. Redd (2010) 48 Cal.4th 691, 719; People v. Johnson (2006) 38 Cal.4th 717, 723.) In reviewing the denial of a motion to suppress, we determine whether substantial evidence supports the trial court's express and implied factual findings. (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial court has the power to judge witness credibility, resolve conflicts in the evidence, and draw reasonable factual inferences. (People v. Woods (1999) 21 Cal.4th 668, 673.) While we defer to factual findings supported by substantial evidence, we exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser, supra, at p. 362.)
There is no dispute here that the search and seizure were warrantless.
Here, Deputy Foxwell stopped the silver Lexus based on the driver's failure to signal when she turned. Section 22107 provides: "No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement." (Italics added.) Thus, an unsignaled turn violates section 22107 only when the turning car's movement may affect other cars. (People v. Carmona (2011) 195 Cal.App.4th 1385, 1390-1391.) If there are no other cars that may be affected, the unsignaled turn does not violate the statute. (Id. at p. 1391.) Actual impact on other cars is not required—a potential effect may trigger the signal requirement. (People v. Logsdon, supra, 164 Cal.App.4th at p. 745.) The vehicle affected may be an officer's "patrol car, irrespective of the lack of any other traffic." (Id. at p. 744.)
In this case, the specific, articulable facts proffered by the People do not support a reasonable suspicion of a Vehicle Code violation. (§ 22107.) This is so because there is no substantial evidence to show the Lexus's turn may have affected other cars. The Lexus was turning right from a parking lot onto Foothill Boulevard. There is no evidence other cars were near the Lexus, either behind it or on Foothill Boulevard, except perhaps the deputy's patrol car. The deputy was headed east on Foothill Boulevard while the Lexus was poised to head west. The deputy was on the opposite side of the street as the Lexus. He did not indicate how far he was from the Lexus when he saw it turn onto the roadway. These facts—the Lexus's right turn into lanes heading the opposite direction of the patrol car, which was some unidentified distance away—neither establish nor permit a reasonable inference that the Lexus's movement may have affected the patrol car.
The decision of our Division Three colleagues in Carmona is instructive. In that case, the officer was driving south on a street while the defendant was driving north on the same street. (People v. Carmona, supra, 195 Cal.App.4th at p. 1388.) The two vehicles were the only two on the road at the time. (Ibid.) When the officer was about 55 feet away from the defendant, the defendant turned right at an intersection without signaling. (Ibid.) The officer turned left at the same intersection to follow the defendant and stopped him for violating section 22107. (Ibid.) At the suppression hearing, the officer acknowledged the defendant's right hand turn could not have affected the officer (he was traveling in the opposite direction and at least 55 feet away) or any other cars (there were none). (Ibid.) Given that the defendant's turn did not and could not have affected any other cars, no traffic violation occurred, and thus "no reasonably objective suspicion existed to justify the stop." (Id. at pp. 1390-1391, 1394.) The court reversed the judgment and remanded with directions to grant the defendant's motion to suppress. (Id. at p. 1395.)
S.O.'s case is substantially similar. While Deputy Foxwell did not expressly acknowledge the Lexus's turn could not have affected him, the Carmona officer's acknowledgement was an inescapable conclusion from the fact that he was 55 feet from the defendant and heading in the opposite direction. The officer could have hardly said otherwise. The same is true here. The Lexus's right turn into lanes on the opposite side of the street no more affected Deputy Foxwell than any traffic lawfully traveling in the opposite direction—a circumstance that, by itself, requires no signal.
Indeed, the People do not contend the deputy's patrol car may have been affected. Instead, they argue "[i]t was reasonable that Deputy [Foxwell] believed the driver's failure to signal affected other cars in the parking lot or on the roadway" because the Lexus was exiting a parking lot at midday. We cannot say that such a belief was reasonable on this record. To conclude other cars might have been present amounts to pure speculation, not a reasonable inference. (People v. Davis (2013) 57 Cal.4th 353, 360 [reasonable inferences do not arise from suspicion, imagination, supposition, conjecture, guesswork, or "'"mere speculation as to probabilities without evidence."'"].) The evidence to support this inference was absent. For instance, there was no explanation of whether the lot was empty or full, which might suggest how busy it would be. Nor was there evidence of typical traffic patterns on that area of Foothill Boulevard during that time of day, or testimony from the deputy about his experience with traffic on that road around midday.
Faced with a similar "gap in the evidence of reasonable suspicion," the Ninth Circuit Court of Appeals concluded in an analogous case that "there was not a shred of evidence that any vehicle other than the [defendant's car] itself was affected by" the defendant's unsignaled right turn. (United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1131.) Mariscal involved the Arizona signaling statute, which, like our statute, provides a person must signal when turning only "'in the event any other traffic may be affected by the movement.'" (Ibid., quoting Ariz. Rev. Stat. § 28-754(A).) There was no evidence any cars were around, except a parked patrol car, when the defendant turned without signaling. (Id. at p. 1129.) The district court denied the motion to suppress, observing the road was "'a heavily traveled east-west street in the City of Phoenix.'" (Ibid.) But the Ninth Circuit rejected the court's attempt to fill the gap in evidence with this observation. (Id. at p. 1131.) It explained the court concluded the road was heavily traveled "without the benefit of any evidence to that effect in the record. . . . It almost sounds as if the court merely injected some sort of personal driving experience into the case. That would not only be unsatisfactory, but it would also suffer from the defect that nobody can tell if the judge's experience was at the location in question in autumn" at the time of night in question. (Ibid., fn. omitted.) The People's invitation to infer the Lexus's turn may have affected other cars suffers from the same deficiencies. The record contains no evidence that would have permitted the trial court to infer what is typical traffic for the place and time in issue.
Alternatively, the People argue the traffic stop was lawful based on the information from the 911 caller—that is, the caller provided Deputy Foxwell with articulable facts giving rise to a reasonable suspicion that S.O. was involved in criminal activity. S.O. argues the People waived any reliance on the 911 call because the prosecutor expressly disclaimed reliance on it at the hearing and said the deputy stopped the car for a Vehicle Code violation. And in any event, S.O. asserts, the caller's information did not provide reasonable suspicion to stop the Lexus.
We need not decide whether the prosecutor waived reliance on the 911 call because, regardless of whether she did, S.O. is correct on the merits. The 911 call did not provide specific, articulable facts giving rise to a reasonable suspicion that the driver or a passenger in the stopped Lexus was engaged in criminal activity. (People v. Durazo, supra, 124 Cal.App.4th at p. 731.) The 911 caller said he had driven an Uber customer to Los Angeles on an earlier unspecified date, and the passenger had acted suspiciously on that occasion by making many stops and delivering small items. He refused that same passenger a ride to Los Angeles on the day in question, noticed the passenger was wearing a "onesie-type" outfit that summer day, and saw the passenger get into a silver Lexus. This evidence fails to provide the requisite articulable facts "that criminal activity involving [S.O.] [was] afoot." (People v. Strider (2009) 177 Cal.App.4th 1393, 1398.)
There are no facts connecting the Lexus the deputy saw to the Lexus the 911 caller saw, other than the simple match in make and color of the car. There is no evidence the caller saw the passenger get into a Lexus at the parking lot in question. There is no evidence of the caller's location, either when he encountered the passenger, or when he observed the passenger get into another car, such that the court could conclude these things occurred near the parking lot. There is no evidence Deputy Foxwell saw the passenger in the Lexus and observed him wearing the "onsie-type" outfit the 911 caller described. There is no evidence the deputy saw a passenger in the car at all when he decided to stop it. And, there is no description of the Lexus driver in the record, such that the deputy could have concluded the Lexus driver was the same one the caller saw. In short, on his way to the location to which he was dispatched, Deputy Foxwell encountered a car of the same make and color described by the 911 caller. But this simple match alone does not give rise to a reasonable suspicion that the passenger was in the Lexus the deputy targeted. The facts in the record do not support the objectively reasonable suspicion necessary to justify the traffic stop under the Fourth Amendment.
In sum, the People bore the burden of justifying the warrantless stop, but they failed to proffer substantial evidence showing a reasonable suspicion of a Vehicle Code violation, or other potential criminal activity connected to the stopped Lexus. Because the traffic stop was unlawful, the exclusionary rule requires the suppression of all evidence obtained as a result of the stop, including S.O.'s statements to Deputy Foxwell and the firearms in his fanny pack. (United States v. Calandra (1974) 414 U.S. 338, 347; In re William G. (1985) 40 Cal.3d 550, 567.) The court should have granted S.O.'s motion to suppress.
In light of our conclusion, we need not reach S.O.'s alternative argument that he suffered a prolonged detention and patdown search in violation of his Fourth Amendment rights. --------
IV. DISPOSITION
The order declaring S.O. a ward of the court is reversed, and the juvenile court shall permit him to withdraw his admission to the charges in the petition. The juvenile court is directed to set aside its order denying S.O.'s motion to suppress and enter an order granting the motion to suppress.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.