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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Daniel Walter HICKS, Defendant and Respondent.

No. H013245.

Decided: September 28, 1995

George W. Kennedy, District Attorney, Marilyn Masciarelli, Deputy District Attorney, for Plaintiff/Respondent. Edward Mahler, Daly City, Defendant/Appellant.

Statement of the Case

The People appeal from an order dismissing the case, after the superior court granted defendant Daniel Walter Hicks's motion to suppress evidence.   (Pen.Code, § 1238, subd. (a)(7).)   On appeal, they claim the court erred because it was bound by the magistrate's previous factual findings which compelled denial of the motion.   They also claim that an independent review compels denial of the motion.   We disagree and affirm the order dismissing the case.

Procedural History and Facts

Defendant Daniel Walter Hicks was arrested for possession of methamphetamine.  (Health & Saf.Code, § 11377.)   At the preliminary hearing, defendant moved to suppress evidence found in a search incident to his arrest on outstanding traffic warrants.   We first summarize the evidence adduced at that hearing.

At about 2:30 a.m., on April 4, 1994, Officer Martin Corona of the Milpitas Police Department stopped a car because it had an inoperable rear license plate light.  (See Veh.Code, § 24601.)   Corona observed three people inside, the driver, Suzanne Buderus, a front seat passenger, William Cawelti, and a rear seat passenger, defendant.   Corona approached Buderus and explained why he stopped her.   She appeared a little nervous, her eyes were glassy, and her pupils somewhat non-reactive.   He asked her to exit and follow him to the front of his patrol car.   At this time, backup Officer Mack arrived and stood next to Corona's car where he could see Corona and the remaining passengers.   At some later point, a third officer arrived.

Corona administered a field sobriety test to Buderus.   While doing so he noticed Cawelti fidget and appear to put something under the seat.   Corona suspected Buderus might be under the influence and decided to investigate further.   He asked for and received her consent to search the car.   He had her remain at his patrol car with Officer Mack while he returned to the car.

Corona returned to the car and illuminated the inside of the car and Cawelti and defendant with his flashlight.   He saw nothing unusual.   He opened the rear door and asked defendant for his identification.   Defendant said he did not have any but gave his name.   Corona wrote down defendant's name and then told defendant and Cawelti to exit the car.   They complied without resistance or comment.   He then directed defendant to stand with Officer Mack at his patrol car.1  Defendant walked toward the patrol car, and when he reached it, Corona told him to stop.

Thereafter while searching the interior of the car, Corona ran a warrant check on defendant and learned that he had outstanding traffic warrants.   He arrested and searched him, finding methamphetamine in a lighter in his pocket.

On these facts, the magistrate denied defendant's motion to suppress.   He ruled as follows:  “I do not feel that there was a problem with asking for the ID.   I don't feel there is a problem asking the defendant to alight from the car and being directed to a place behind the car.  [¶] The only problem that I think might arise is that period where he was directed to the area of the other officer and between that time and when the officer was convinced there was [sic ] warrants out.   And although this is a minimum intrusion ․ I don't feel that anything that the officers did resulted in a detention and that is a violation of [defendant's] 4th Amendment rights.”  (Emphasis added.)

Defendant renewed his motion in the superior court.   At that time, the prosecutor recalled Officer Corona.   His testimony was essentially the same, although he amplified and/or added certain details.   He said that when he returned to the car after receiving consent to search, he said “[s]omething to the effect of, ‘could you, please, step out of the vehicle.   A lady gave ․ me permission to search the vehicle.’ ”   He further testified that he asked defendant “in a polite manner ․ to step over to the front of my patrol car.”   He explained that during the entire encounter, his red emergency lights were on and the side-mounted spotlights were trained on Buderus's car.

In its decision, the superior court pointed out that Officer Corona had defendant exit the car and stand in front of the patrol car with another officer, which he did.   The court concluded that this constituted a detention because “a reasonable person would have believed that he or she was not free to leave.”   The court further found that because there was no basis to suspect defendant of criminal activity, the detention and subsequent arrest and search were unlawful.

The Motion to Suppress was Properly Granted

The People contend that the superior court was bound by the magistrate's previous determination that Officer Corona's conduct toward defendant was reasonable.   Thus, they claim the superior court erred in concluding otherwise.   We disagree.

 Appellate review of a ruling on a motion to suppress is governed by well-settled principles.   In ruling on the motion, the court below finds the historical facts, selects the applicable rule of law, and applies the latter to the facts to determine whether or not the law has been violated.   (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)   On appeal, we must accept factual determinations if supported by substantial evidence.   However, we independently determine the applicable law and whether it has been violated.  (See Ibid.)

 In addition, Penal Code section 1538.5, subdivision (i), provides that if a motion to suppress is first presented to a magistrate, then the magistrate's factual findings, whether express or implied, are binding on the superior court if the motion is later renewed.  (People v. Trujillo (1990) 217 Cal.App.3d 1219, 266 Cal.Rptr. 473;  People v. Ramsey (1988) 203 Cal.App.3d 671, 677–678, 250 Cal.Rptr. 309.)   In such circumstances, the superior court acts as a reviewing court.   In performing this function, the court must respect the magistrate's ability to judge credibility, resolve conflicts, weigh evidence, and draw inferences.   It must also draw all presumptions in favor of the magistrate's factual findings and uphold them if supported by substantial evidence.  (People v. Bishop (1993) 14 Cal.App.4th 203, 214, 17 Cal.Rptr.2d 657.)

 On appeal from the superior court's ruling, we are similarly bound by the magistrate's findings.  (People v. Trujillo, supra, 217 Cal.App.3d at p. 1224, 266 Cal.Rptr. 473.)

 First, whether Officer Corona's actions were reasonable under the Fourth Amendment involves the application of law to the facts.   This is a question of law.  (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961;  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   Thus, contrary to the People's claim, the superior court was not bound by the magistrate's conclusion that Officer Corona acted reasonably.   Rather, on that issue, the superior court was entitled to exercise independent review.

The People's reliance on People v. Ramsey, supra, 203 Cal.App.3d 671, 250 Cal.Rptr. 309 is misplaced.   There, the court held that the superior court was bound by the magistrate's factual finding that the officers announced their presence as required by the knock-notice procedures.

We next note that the magistrate did make an important factual finding.   At the preliminary hearing, Officer Corona testified that he either asked or directed defendant to go stand at his patrol car with another police officer while he searched Buderus's car.  (See fn. 1, ante, p. 28.)   The magistrate resolved this ambiguity and found that Corona “directed” defendant to stand with the other officer.   The superior court properly accepted this finding, which is supported by substantial evidence.   As noted above, we too are bound by the magistrate's finding.   Thus, we independently review the superior court's legal conclusions that (1) Officer Corona's direction constituted a detention, and (2) the detention was unreasonable, i.e., unlawful.

 To determine whether a person has been detained, we ask whether a reasonable person under the circumstances would have thought he or she was free to leave.  (United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497.)   We agree with the superior court's conclusion.

The People note that defendant walked unescorted to where he was directed and expressed no desire to stand elsewhere.   Moreover, Corona did not block defendant from walking elsewhere, say he could not leave, or prevent him from leaving.   The People claim these circumstances establish a consensual encounter as a matter of law and not an intrusion on defendant's Fourth Amendment rights.   Both the magistrate 2 and superior court disagreed, and now so do we.

This court's decision in People v. Gonzalez (1992) 7 Cal.App.4th 381, 8 Cal.Rptr.2d 640 is helpful.   There, the police stopped a car, and when the defendant, a passenger, started to exit, an officer ordered him to stay inside.  (Id. at p. 383, 8 Cal.Rptr.2d 640.)   The officer later testified that he did not suspect the defendant of criminal activity but ordered him to remain in the car for officer-safety reasons.  (Ibid.)  This court concluded that the defendant had been detained because a reasonable person would feel he was not free to leave after receiving such an unequivocal verbal command.   (Id. at p. 384, 8 Cal.Rptr.2d 640.)   We further concluded that the detention was not based on a reasonable suspicion of criminal activity or justified by unspecified safety considerations.

Here, Officer Corona stopped a car for a traffic infraction.   He did not issue a citation but took the driver to his patrol car and had her remain there.   He kept his lights flashing and his spotlights trained on the car.   He returned and asked the passengers for identification.   He had defendant get out and directed him to go to a specific location near another officer and a patrol car, and when defendant reached that location, told him to stop.   Under these circumstances, we believe a reasonable person would not have felt free to disobey Officer Corona's directions and leave the scene.   Thus, we conclude that defendant was detained.

We acknowledge that in Gonzalez, the police actually prevented the passenger from getting out of the car, whereas here, defendant never indicated a desire to leave the area.   However, we do not find this distinction material.   Nothing Officer Corona said or did implied that defendant was free to leave the scene if he wished to do so.   Moreover, that defendant obeyed Corona's directions and did not attempt to do otherwise is equivocal non-conduct that no more reflects voluntary consent than involuntary submission to Corona's authority.

In our view, when one of several police officers at the scene of a prolonged traffic stop directs certain conduct, most people would not infer that the officer is merely making a suggestion.   Realistically speaking, most people would understand such a direction to be a command requiring compliance.

The People's citation to People v. Grant (1990) 217 Cal.App.3d 1451, 266 Cal.Rptr. 587 does not persuade us otherwise.   There, the police stopped a car for speeding and obtained false information from both the driver and passenger about the driver's identity.   The officer then asked the passenger for identification.   On appeal, the passenger claimed the request for ID constituted a detention.  (See People v. Spicer (1984) 157 Cal.App.3d 213, 203 Cal.Rptr. 599 [request for ID of passenger a detention].)   The court disagreed and concluded that the request for ID was simply a “ ‘ “consensual encounter,” ’ ” for which the police needed no justification because the passenger was theoretically free to disregard it.  (Grant, supra, 217 Cal.App.3d at p. 1461, 266 Cal.Rptr. 587;  see Wilson v. Superior Court, supra, 34 Cal.3d at p. 789, 195 Cal.Rptr. 671, 670 P.2d 325.)

Grant is distinguishable because here Officer Corona did more than request defendant's identification.   We acknowledge that the facts recounted in Grant reveal that the officer also had the passenger join the driver near a patrol car.  (217 Cal.App.3d at p. 1455, 266 Cal.Rptr. 587.)   However, the only issue actually decided by the court was whether the request of identification constituted a detention.   The court did not analyze or discuss the officer's other conduct.   Thus, Grant is not applicable precedent for the factual situation before us.  (See People v. Lopez (1986) 176 Cal.App.3d 545, 551–552, 222 Cal.Rptr. 101.)

 Having determined that defendant was detained, we next ask whether it was lawful.  “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, 36 Cal.Rptr.2d 569, 885 P.2d 982.)   Here, we again agree with the superior court that the detention was not based on a reasonable suspicion that defendant was involved in criminal activity.   Indeed, Officer Corona did not suspect defendant of any criminal conduct and testified to this effect.

The People correctly point out, however, that defendant's detention may be proper even if Corona did not personally believe there was a basis to suspect defendant of criminal conduct.  (See People v. Lloyd (1992) 4 Cal.App.4th 724, 733, 6 Cal.Rptr.2d 105.)   They note that Corona suspected Buderus was under the influence.   They also note that Cawelti told Corona he was drunk.   Corona noticed Cawelti's eyes were “almost non-reactive,” he fidgeted, and he appeared to put something under the car seat.   According to the People, these circumstances established probable cause to arrest Buderus and Cawelti for being under the influence and search the car for contraband and also established a reason to suspect that defendant was using a controlled substance or had constructive possession of any drugs that might be in the car.   Thus, the detention was justified.   This argument is meritless.

Officer Corona said that Buderus was a little nervous, her eyes were glassy, and her pupils non-reactive.   Although Corona's assessment of probable cause is not controlling, we note that he had made numerous arrests for being under the influence of controlled substances and had training and expertise in recognizing symptoms of such intoxication.   Moreover, he conceded that it was not unusual to be nervous when stopped by the police.   We also point out that only he observed exactly how glassy and non-reactive Buderus's eyes were and how well she performed a field sobriety test.3  Based on his experienced judgment, he merely suspected she was under the influence and felt it necessary to investigate further.   As to Cawelti, Corona testified that Cawelti did not smell of alcohol, talk with slurred speech, or exhibit any signs of intoxication.

In our view, the evidentiary record in this case is not complete enough to enable us to determine whether or not there was probable cause to arrest Buderus and Cawelti and search the car for contraband.   Officer Corona's experienced, in-field evaluation of Buderus and Cawelti suggests not.   We do not know whether either was arrested or whether contraband was ever found in the car.   Under the circumstances and given the lack of evidence that defendant was intoxicated, armed and dangerous, or possessed contraband, Buderus's consent to search her car does not justify detaining defendant on the theory that if contraband were found, Buderus and Cawelti might say it belonged to defendant.  (Compare with People v. Fisher (1995) 38 Cal.App.4th 338, 45 Cal.Rptr.2d 57 [driver's admission that car contained drugs justified detention of passenger].)

The People's reliance on United States v. Vaughan (9th Cir.1983) 718 F.2d 332 is misplaced.   There, police stopped a car containing three people.   They had arrest warrants for two but no reason to suspect the defendant of any criminal activity.   When he twice attempted to walk away, police detained him.  (Id. at p. 333.)   In dictum, the court upheld the detention on the theory that police had the right to frisk the defendant for weapons and ascertain whether any evidence that might be located on the two arrestees or in the car could incriminate him.  (Id. at p. 334.)   The court relied on Michigan v. Summers (1981) 452 U.S. 692, 702–703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340.   In both Summers and Vaughan, the courts placed great reliance on the fact that police possessed warrants based on probable cause for an arrest and/or search.

First, Vaughan is distinguishable from Summers, in that the police in Summers had probable cause to believe there was contraband on the premises, which the defendant was attempting to leave.   Thus, there appears to have been an articulable basis to suspect the defendant of criminal activity related to the contraband.   In Vaughan, however, the police had only arrest warrants.   The court adopted a broad “automatic companion” rule, under which companions of an arrestee may automatically be detained regardless of whether there is a reasonable basis to suspect them of any criminal conduct.   We question the propriety of such a rule.  (See United States v. Bell (6th Cir.1985) 762 F.2d 495, 498.)   However, even if we agreed with the detention dictum in Vaughan, the instant case is distinguishable because due to an incomplete evidentiary record we cannot determine whether Officer Corona had probable cause to arrest Buderus or Cawelti or search the car.

 The People claim the detention was justified by concern for safety and administrative necessity.   We disagree.   There was no evidence defendant was armed or dangerous, the Superior Court did not find a factual basis for Corona to have thought he was, and Corona did not testify that he detained defendant for safety purposes.   Moreover, there were three police officers at the scene, and before the detention, Corona had been able to observe defendant, and defendant complied with Corona's request for identification.   Thus, the detention was not justified by concerns for officer safety.  (Cf. People v. Gonzalez, supra, 7 Cal.App.4th 381, 8 Cal.Rptr.2d 640.) 4

 Similarly, we reject the People's argument that defendant could be detained as a potential witness to criminal activity.   Defendant accurately identified himself to Corona before the detention.   Moreover, the apparent crimes here were a traffic infraction and being or driving under the influence, all of which Officer Corona was a witness to.   Nor could the detention be justified by the possibility that Corona might arrest Buderus and release the car to defendant.   The Vehicle Code provides adequate procedures for dealing with vehicles in the event that the driver has been arrested.  (Veh.Code, § 22651.)   It does not authorize the detention of passengers as potential bailees.

In light of our discussion, we conclude that the superior court properly concluded defendant was unlawfully detained and granted his motion to suppress the evidence.


The order dismissing the action is affirmed.


1.   The preliminary hearing transcript reveals the following exchange:  “Q [defense counsel] When you had [defendant] step out of the car, did you instruct him to go to any particular location?  [¶] A [Officer Corona] To the front of my patrol car.  [¶] Q What did you say to [defendant]?  [¶] A Something to the effect of go and stand in front of the patrol car with the other officer.  [¶] Q Did you say get out of the car and go stand over in front of the patrol car with the other officer?  [¶] A No.  [¶] Q What did you say?  [¶] A I asked him to step out of the vehicle and stand in front of the patrol car with the other officer.”

2.   A consensual encounter is not intrusion that implicates Fourth Amendment rights because one is free to ignore it.  (See Wilson v. Superior Court (1983) 34 Cal.3d 777, 789, 195 Cal.Rptr. 671, 670 P.2d 325.)   Thus, police need no justification for initiating such encounters.   Here, the magistrate found there was an intrusion but that it was justified.

3.   Corona did not testify concerning the results of the test.

4.   At oral argument, the People cited People v. Ritter (1980) 115 Cal.App.3d Supp 1, 170 Cal.Rptr. 901 and claimed the detention was a valid exercise of authority under Vehicle Code section 2800.   We are unpersuaded.In Ritter, police officers suspected a driver was under the influence and stopped his car.   They told defendant, a passenger, to remain inside while they tested the driver.   The defendant got out of the car and interfered with the test.   The defendant was convicted of violating Vehicle Code section 2800, which, among other things, makes it unlawful to disobey the order of an officer performing duties under the Vehicle Code.  (115 Cal.App.3d Supp. at pp. 3–4, 170 Cal.Rptr. 901.)   The appellate department of the superior court affirmed the conviction, concluding that the order to remain in the car was reasonably necessary for the officers to perform their official duties.  (Id. at p. 5, 170 Cal.Rptr. 901.)   It does not appear that the defendant raised Fourth Amendment claims because the opinion does not discuss any.Moreover, People v. Gonzalez, supra, 7 Cal.App.4th 381, 8 Cal.Rptr.2d 640 casts considerable doubt on the constitutionality of Ritter 's view that police may order a passenger to remain in a car.   Simply put, the Vehicle Code cannot authorize a detention that is unlawful under the Fourth Amendment.

WUNDERLICH, Associate Justice.

BAMATTRE–MANOUKIAN, Acting P.J., and MIHARA, J., concur.