Filed 5/13/21 P. v. Cho CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046609
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1775736)
v.
JEFFREY CHO,
Defendant and Appellant.
After his motion to suppress was denied, defendant pleaded no contest to failing to
update his sex offender registration after moving to a new address. Challenging the
suppression ruling on appeal, he argues his arrest for the registration violation was tainted
by an unlawful detention in which he was approached and questioned by a police officer.
We conclude that a seizure occurred under the Fourth Amendment, and because its scope
was not reasonably related to its objectively lawful purpose, it resulted in an unlawful
detention. We will therefore reverse the judgment and remand the matter with
instructions to vacate the order denying the motion.
I. BACKGROUND
Defendant was approached by an officer on late night patrol as he was walking in
a Milpitas neighborhood. The officer asked defendant questions, and upon learning that
defendant was staying or living at his sister’s home and was required to register as a sex
offender, the officer performed a records check which revealed that defendant was not
registered at his sister’s address. The officer engaged defendant in further conversation
about his residence and registration responsibilities before parting ways.
Two weeks later and after reviewing the initial officer’s report, a different officer
surveilled defendant’s sister’s home, and followed defendant who was picked up from the
residence in a car driven by a female. After speaking with the female, defendant, and
defendant’s brother-in-law, defendant was arrested for failing to register a change of
address. Defendant was charged in an amended information with being a transient sex
offender who failed register after moving to a residence. (Pen. Code, § 290.011,
subd. (b).) The information alleged two prior convictions for failing to register as a sex
offender, within the meaning of Penal Code section 667.5, subdivision (b).
Defendant moved to suppress all evidence based on an unlawful detention and
arrest, arguing his encounter with the first officer was an unlawful detention, and “the
things that led up to the arrest … are fruit of the poisonous tree from the initial
detention.” At the hearing on defendant’s motion, Lieutenant Hernandez testified as the
City of Milpitas police officer who initially contacted defendant. He stated that he was
on duty, in uniform, and driving a marked patrol car south on Arizona Avenue at about
1:30 a.m. As he was approaching Coelho Street, he noticed defendant walking and
holding a paper bag to his mouth as he stepped into the intersection. Lieutenant
Hernandez “thought [he] recognized [defendant] from before” and decided to “stop[] to
talk to him,” because he was curious as to how he knew him. He parked his patrol car on
Arizona Avenue north of Coelho Street as defendant proceeded across the intersection.
Lieutenant Hernandez stepped out of his patrol car and illuminated defendant with his
spotlight because the street was dimly lit. Lieutenant Hernandez’s first words to
defendant were, “Hey, where do I know you from?” Defendant said something to the
effect of “I’m just going home” or “I live there,” pointing to a house on the corner.
Defendant did not appear to recognize Lieutenant Hernandez. But Lieutenant Hernandez
still thought defendant looked familiar, so he asked defendant whether he was on
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probation or parole because he “was seeking the reason why he seemed familiar.”
Defendant answered that he had been on probation and he was a sex registrant.
Lieutenant Hernandez conducted a records check to see if defendant’s sex
offender registration was current, and was informed that defendant was registered in San
Jose. A lengthier conversation then ensued about defendant’s residence. Lieutenant
Hernandez asked defendant how long he had been staying at the Arizona Avenue home.
At different points in the conversation, defendant said he was “just visiting,” or he was
staying over that night because it was too late to go home. At one point, the lieutenant
said “ ‘You told me you live here,’ ” and defendant said “no.” Later in the conversation
defendant said the house was his sister’s and he had been staying there for about a month.
Defendant acknowledged having initialed the conditions of registration. Lieutenant
Hernandez decided not to pursue any registration noncompliance at that time because it
was the middle of the night and he did not have a copy of defendant’s paperwork.
Lieutenant Hernandez told defendant he needed to register with the Milpitas Police
Department, and defendant said he would do so the next day. Lieutenant Hernandez
watched defendant use a front door key to enter his sister’s house. He estimated the
encounter lasted 15 to 20 minutes.
Lieutenant Hernandez specifically testified that defendant was not detained for an
alcohol violation: “[I]n my experience in dealing with people that are drinking from
paper bags, the majority of the time it’s alcohol. In this situation I saw it. I recognized
that that could be a possibility, but I engaged [defendant] in a consensual encounter. I
didn’t say stop. I didn’t say police. I asked him where I knew him from. We had a
conversation. He told me he was coming from 7-Eleven [be]cause he went to go get a
drink. [¶] … [¶] After the encounter I did confirm that it was alcohol.” Lieutenant
Hernandez clarified that in other contexts knowing whether someone he makes contact
with is on probation or parole may be important because of curfew or alcohol restrictions.
But that was not why he made that inquiry here: “Here[,] I have a person that’s out late –
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1:30 in the morning. They have an open container. But in this context all I wanted to
know is where I knew him from.”
Defendant testified that he was walking to his sister’s house from a 7-Eleven
where he had bought a beer. He noticed a car approaching, and “[s]uddenly the light’s
like real bright at me,” so he shielded his face with his right forearm. The car passed
him, turned around, came back toward him, and parked in front of his sister’s house.
Lieutenant Hernandez asked defendant whether he knew him, and defendant said “No, I
don’t think so.” The lieutenant asked defendant whether he was on probation or parole,
and defendant said he used to be on probation. The lieutenant asked what for, and
defendant told him he was “a 290.” Lieutenant Hernandez asked about the house
defendant had pointed to. Defendant said it was his sister’s house, and he denied living
there. At no point did Lieutenant Hernandez draw his weapon, ask defendant to sit on the
ground, or handcuff defendant. Defendant testified he did not feel he was free to end the
encounter and walk away. He also described feeling scared when he denied living at his
sister’s house and Lieutenant Hernandez “kept [] aggressively [] telling me I’m lying.”
Defendant argued that a detention occurred without reasonable suspicion, tainting
the ultimate probable cause to arrest two weeks later. The prosecution argued that the
contact was consensual. And if it were viewed as a detention, it was lawful in light of
defendant’s statements that he was a 290 registrant headed home. When pressed by the
court as to what criminal activity is presented by defendant’s status as a sex offender
registrant, the prosecutor then argued that the lieutenant’s conduct was justified by the
apparent open container violation.
The trial court ruled that Lieutenant Hernandez detained defendant within the
meaning of the Fourth Amendment because a reasonable person would not have felt free
to leave given the late hour, the bright spotlight, and the “accusatory” nature of the
officer’s questions. But the court also ruled the detention was justified by the apparent
open container violation. It noted a dispute in the evidence regarding whether at the
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outset defendant said he was living at his sister’s house or merely staying there for the
night. Without resolving the dispute, the court found Lieutenant Hernandez had
interpreted defendant’s initial statement to mean he was living at the house, and “the
detention was [not] unduly prolonged with him running the records check and continuing
the conversation and attempting to clarify the situation.”
After the motion was denied, the prosecutor amended count 1 to a misdemeanor,
and defendant entered a no contest plea to the amended count. Imposition of sentence
was suspended, defendant was placed on two years’ informal probation, and ordered to
serve 30 days in county jail.
II. DISCUSSION
The federal and California constitutions prohibit unreasonable searches and
seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) California law
applies federal constitutional standards to the review of search and seizure rulings.
(People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) A consensual encounter between
a law enforcement officer and a citizen does not constitute a seizure under the Fourth
Amendment. (Florida v. Bostick (1991) 501 U.S. 429, 434.) An encounter is consensual
if a reasonable person would feel free to leave or to refuse to cooperate with the officer.
(Id. at pp. 431, 434.) A seizure, or detention, occurs when an officer restrains a person’s
liberty by means of either physical force or a show of authority. (Brendlin v. California
(2007) 551 U.S. 249, 254.)
The California Supreme Court has elaborated on the test to distinguish between a
consensual encounter and a detention: “The United States Supreme Court has made it
clear that a detention does not occur when a police officer merely approaches an
individual on the street and asks a few questions. [Citation.] As long as a reasonable
person would feel free to disregard the police and go about his or her business, the
encounter is consensual and no reasonable suspicion is required on the part of the officer.
Only when the officer, by means of physical force or show of authority, in some manner
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restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to
determine whether a particular encounter constitutes a seizure, a court must consider all
the circumstances surrounding the encounter to determine whether the police conduct
would have communicated to a reasonable person that the person was not free to decline
the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses
the coercive effect of police conduct as a whole, rather than emphasizing particular
details of that conduct in isolation. [Citation.] Circumstances establishing a seizure
might include any of the following: the presence of several officers, an officer’s display
of a weapon, some physical touching of the person, or the use of language or of a tone of
voice indicating that compliance with the officer’s request might be compelled.
[Citations.] The officer’s uncommunicated state of mind and the individual citizen’s
subjective belief are irrelevant in assessing whether a seizure triggering Fourth
Amendment scrutiny has occurred.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
In our review of a trial court’s ruling on a motion to suppress, we review factual
findings for substantial evidence, and make factual inferences in favor of the trial court’s
ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We exercise our independent
judgment to determine whether a seizure occurred and whether any seizure was
reasonable under the Fourth Amendment. (Ibid.; People v. Glaser (1995) 11 Cal.4th 354,
362.)
A. DEFENDANT WAS DETAINED BY LIEUTENANT HERNANDEZ
Defendant argues that his encounter with Lieutenant Hernandez was not
consensual because a reasonable person would not have felt free to leave when
Lieutenant Hernandez stopped his patrol car alongside defendant, immediately got out,
illuminated defendant with a spotlight, and approached defendant while asking
“accusatory questions.” He argues the facts are analogous to those in People v. Garry
(2007) 156 Cal.App.4th 1100 (Garry) and People v. Kidd (2019) 36 Cal.App.5th 12
(Kidd). The Attorney General relies largely on People v. Chamagua (2019)
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33 Cal.App.5th 925 (Chamagua) and People v. Bouser (1994) 26 Cal.App.4th 1280
(Bouser) to argue that defendant’s movements were not restrained by a show of authority.
From his patrol car at a distance of about 35 feet, the officer in Garry observed the
defendant on a street corner in a high crime area at night. (Garry, supra,
156 Cal.App.4th at pp. 1103–1104.) The officer directed the patrol car spotlight on Garry
and walked briskly toward him. (Id. at p. 1104.) Garry started walking backwards and
said “ ‘I live right there,’ ” pointing to a house. (Ibid.) As the officer approached, he said
“ ‘Okay, I just want to confirm that,’ ” and asked Garry whether he was on probation or
parole. (Ibid.) The appellate court concluded that the officer’s actions, “taken as a
whole, would be very intimidating to any reasonable person.” (Id. at p. 1111.) Garry
was “bathed [] in light” as the officer advanced “35 feet in ‘two and a-half [to] three
seconds’ … while questioning him about his legal status” and “disregarding Garry’s
indication that he was merely standing outside his home.” (Ibid.) Rather than engage in
conversation, the officer “immediately and pointedly inquired about defendant’s legal
status as he quickly approached.” (Id. at pp. 1111–1112.) The officer’s actions
“constituted a show of authority so intimidating as to communicate to any reasonable
person that he or she was ‘ “not free to decline [the officer’s] requests or otherwise
terminate the encounter.” ’ ” (Ibid.)
In Kidd, the appellate court found a detention where a patrol officer saw two
people sitting in a parked car on a residential street late at night. (Kidd, supra,
36 Cal.App.5th at p. 15.) The officer passed the car, made a U-turn, parked 10 feet
behind the car, and pointed two spotlights at the car. (Ibid.) The court recognized that
the officer did not “unambiguously signal a detention” by blocking Kidd’s car or
illuminating emergency lights. (Id. at p. 21.) It reasoned, however, that “motorists are
trained to yield immediately when a law enforcement vehicle pulls in behind them and
turns on its lights.” (Ibid.) And “[r]egardless of the color of the lights the officer turned
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on, a reasonable person in Kidd’s circumstances ‘would expect that if he drove off, the
officer would respond by following with red light on and siren sounding ... .’ ” (Ibid.)
In Chamagua, two deputies observed a pedestrian at night quickly change course
after noticing their patrol car and walk into an apartment complex driveway.
(Chamagua, supra, 33 Cal.App.5th at p. 927.) The deputies pulled alongside Chamagua,
got out of the car, and asked “ ‘Hey, how are you doing? What’s your name? Do you got
anything illegal on you?’ ” (Ibid.) Concluding the encounter was consensual, the
appellate court reasoned that the deputies did not use or threaten force or command
Chamagua to do anything. (Id. at p. 929.) It also noted that asking incriminating
questions does not turn an encounter into a detention, even if those targeted with
questions believe themselves the object of official scrutiny. (Ibid.)
In Bouser, the officer observed the defendant in daylight standing by a dumpster in
an alley known for drug dealing. (Bouser, supra, 26 Cal.App.4th at p. 1282.) The officer
stopped his patrol car about four feet behind Bouser, and walked toward him asking
“ ‘Hey, how you doing? You mind if we talk?’ ” (Ibid.) Bouser agreed, and the officer
asked general questions such as his name, date of birth, arrest history, and what he was
doing there. (Ibid.) For the next three to five minutes, the officer filled out a field card
and ran a warrants check while making “ ‘small talk.’ ” (Ibid.) Bouser “just [stood]
there, not causing [] any problems.” (Ibid.) Two justices found the encounter did not
constitute a seizure: Although Bouser reasonably may have felt himself the subject of
general suspicion when the officer checked for outstanding warrants over the radio,
neither the questions nor the records check related to specific and identifiable criminal
activity. (Id. at p. 1287.) The officer did not order Bouser to do anything while
undertaking the records check, nor did the officer draw his weapon, gesture in a
threatening manner, or utilize the patrol car’s lights or siren. (Ibid.) The dissenting
justice noted that Bouser was nervous and immediately walked away from the officer, but
still could not shake him. (Id. at p. 1289.) In that justice’s view, a reasonable person in
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Bouser’s circumstances would not believe the officer would allow him to leave. (Ibid.)
And a reasonable person would not have felt free to walk away during the records check:
“The ordinary honest sort would consider that poor citizenship at best, illegal at worst; an
experienced street person would know it would probably only aggravate a deteriorating
situation and might have unpleasant physical consequences.” (Ibid.)
We find Kidd readily distinguishable because it involved a vehicle and its
reasoning relies on a motorist’s state of mind. Bouser is also distinguishable given that
the encounter there occurred during the day and did not involve a spotlight or accusatory
questions. While both the instant case and Chamagua involve pedestrians approached by
officers in a patrol car, the officer in Chamagua did not spotlight the defendant or open
the conversation with an accusatory question.
The Attorney General distinguishes Garry, arguing that there the officer’s conduct
was intimidating from the inception, while here Lieutenant Hernandez did not approach
defendant “headlong” or “pose[] questions in an intimidating voice.” But even though
there was no evidence Lieutenant Hernandez approached defendant on foot in a hurried
manner, defendant testified that Lieutenant Hernandez drove by him with bright lights
before turning around and parking. Lieutenant Hernandez testified that he came to a slow
stop as he approached defendant while defendant walked in his direction. Lieutenant
Hernandez turned his spotlight on defendant as he got out of the car, and the trial court
found he immediately confronted defendant with non-conversational accusatory
questions. It was also late at night and defendant was alone. The fact that defendant
walked toward Lieutenant Hernandez does not demonstrate consent, because he had
parked directly in front of the house where defendant was headed.
The facts here are similar to those in People v. Roth (1990) 219 Cal.App.3d 211
(Roth). There the court found a detention occurred when two deputies approached Roth
as he was walking in a deserted grocery store parking lot around 1:30 a.m. (Id. at p. 213.)
The deputies shined their spotlight on Roth, stopped the patrol car, and both deputies got
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out. The driver stood behind the open car door and said, “I would like to talk to you,” or
“Come over here. I want to talk to you.” (Ibid.) The Roth court reasoned that a
reasonable person in that situation would not feel free to leave. (Id. at p. 215.) (One
justice concurred solely based on the trial court’s finding that the deputy had commanded
Roth to engage in conversation. (Id. at p. 216 [conc. opn. of Todd, J.].))
The Attorney General argues use of the spotlight was justified for officer safety
and did not restrict defendant’s movement, citing People v. Perez (1989)
211 Cal.App.3d 1492. In Perez, two people were in an unlit parked car in a dark corner
of a motel parking lot known for drug dealing and prostitution. (Id. at p. 1494.) The
officer positioned his patrol car “head on” with Perez’s car and turned on its high beams
and spotlights to get a better look at the occupants and gauge their reaction. (Ibid.) He
left “plenty of room” for Perez to drive away and observed Perez and his passenger
slouched over in the front seat. (Ibid.) The officer approached after Perez and the
passenger were unresponsive to the lights and he became concerned regarding their
sobriety. (Ibid.) The court found no detention occurred because the officer did not block
Perez’s way or activate emergency lights. (Id. at p. 1496.) The court recognized that the
use of high beams and spotlights might cause a reasonable person to believe they are the
object of official scrutiny, but directed scrutiny did not amount to a detention. (Ibid.)
In contrast to Perez, where the officer used the patrol car lights to view behavior
from a distance and did not approach until he observed signs consistent with intoxication,
here Lieutenant Hernandez parked, directed his spotlight at defendant as he got out of the
car, and engaged defendant in direct questioning regarding his probation and parole
status. Considering the encounter as a whole rather than focusing on isolated details, we
agree with the trial court that a reasonable person in defendant’s circumstances would not
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have believed he was free to disregard the lieutenant’s questions and walk away. (See
Florida v Bostick, supra, 501 U.S. at p. 434.)
B. THE DETENTION WAS UNREASONABLE UNDER THE FOURTH AMENDMENT
The Attorney General argues defendant was lawfully seized because Lieutenant
Hernandez had reasonable suspicion to believe defendant was drinking alcohol from a
container in the paper bag. We agree that Lieutenant Hernandez would have been
justified in detaining defendant to investigate possible infractions for carrying an open
container or drinking in public. But according to his own testimony, that is not what
happened here.
To determine whether a seizure was lawful, we consider “whether the officer’s
action was justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” (Terry v. Ohio (1968)
392 U.S. 1, 20.) “[T]he question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation.” (Graham v. Connor (1989) 490 U.S. 386, 397.)
“[A]n investigatory detention [may] exceed constitutional bounds when extended beyond
what is reasonably necessary under the circumstances which made its initiation
permissible.” (People v. McGaughran (1979) 25 Cal.3d 577, 586.) In other words, “[a]
seizure for [violating the law] justifies a police investigation of that violation.”
(Rodriguez v. United States (2015) 575 U.S. 348, 354 [italics added] (Rodriguez).) The
seizure “ ‘must be carefully tailored to its underlying justification,’ ” and “ may ‘last no
longer than is necessary to effectuate th[at] purpose.’ ” (Ibid.)
Knowles v. Iowa (1998) 525 U.S. 113 is instructive. The officer in Knowles
elected to issue a citation to a motorist rather than arrest him for a state law traffic
offense. (Id. at p. 114.) The state Supreme Court upheld the ensuing search of the
vehicle, reasoning that “so long as the arresting officer had probable cause to make a
custodial arrest, there need not in fact have been a custodial arrest” to justify the
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warrantless search as a search incident to an arrest. (Id. at pp. 115–116.) The United
States Supreme Court reversed, holding the search incident to an arrest exception to the
warrant requirement does not apply where there is no actual arrest. (Id. at pp. 116–119.)
Although the officer could have arrested the motorist, the circumstances justifying a
warrantless search incident to an arrest are not present in a non-arrest setting. (Ibid.)
This court rejected a similar argument in People v. Espino (2016) 247 Cal.App.4th 746,
where the fact that officers could have arrested Espino for a traffic violation did not
justify a vehicle search undertaken without proper authority. (Id. at p. 763.)
Just as the searches in Knowles and Espino were not rendered lawful by
circumstances which, had they been acted upon, would have supported a lawful arrest,
the detention here is not made lawful by what Lieutenant Hernandez could have but
elected not to do. “The reasonableness of a seizure … depends on what the police in fact
do.” (Rodriguez, supra, 575 U.S.at p. 357.) Rather than investigate the possible open
container infraction, Lieutenant Hernandez pursued his curiosity about defendant’s
identity. Indeed, he did not investigate what was in defendant’s paper bag until after the
encounter. Despite objectively lawful grounds for a detention, the seizure here was not
carefully tailored to that purpose and was therefore unreasonable under the Fourth
Amendment.
III. DISPOSITION
The judgment is reversed. The matter is remanded, and the trial court is directed
to vacate its order denying the motion to suppress and to enter a new order granting the
motion. The trial court shall determine in light of the new order whether defendant’s
arrest was supported by probable cause.
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____________________________________
Grover, J.
WE CONCUR:
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Greenwood, P. J.
____________________________
Bamattre-Manoukian, J.
H046609 - The People v. Cho