Filed 3/2/22 P. v. Shabazz CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B310160
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA487360
v.
ANDWELE ABIADE SHABAZZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Reversed and remanded
with directions.
Jason A. Lieber, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael Keller and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Andwele Abiade Shabazz pled no
contest to possession of a firearm, and the trial court sentenced
him to 32 months in state prison. On appeal, Shabazz argues the
gun evidence was obtained in violation of his Fourth Amendment
rights. For the reasons discussed below, we agree with Shabazz
and remand the case to the trial court.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Shabazz with assault upon a peace officer
(Pen. Code,1 § 245, subd. (c); count one) and possession of a
firearm by a felon (§ 29800, subd. (a)(1); count two). With respect
to both counts, the information alleged Shabazz sustained a prior
strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
With respect to count one, the information alleged he sustained a
prior serious felony conviction. (§ 667, subd. (a)(1).)
Shabazz pled no contest to count two and admitted the
prior strike allegation attached to that count. Pursuant to the
plea agreement, the trial court dismissed count one and the
remaining allegations. The trial court sentenced Shabazz to a 16-
month lower term on count two, doubled to 32 months because of
the prior strike.
Shabazz timely appealed.
1 All further undesignated statutory references are to the
Penal Code.
2
FACTUAL BACKGROUND
The following facts are taken from Shabazz’s preliminary
hearing. On May 18, 2020, at approximately 8:43 p.m., Los
Angeles Police Officers Marco Peralta and Michael Barragan
were in the parking lot of a McDonald’s located at 505 Florence
Avenue when they contacted Shabazz.2 The officers were in
uniform and drove a marked police car. They were in the parking
lot investigating criminal conduct such as loitering, prostitution,
and trespassing, which Officer Peralta testified was common in
that parking lot. Officer Peralta could not recall whether the
McDonald’s was open or closed when he entered the parking lot.
Shabazz’s car was in a parking space facing a wall. The
officers parked their car five or six feet behind Shabazz’s car in
such a way that he would have to maneuver around them to
leave. Shabazz was in the driver’s seat of his car when the
officers made contact with him.3 Officer Peralta went to the
driver’s side of Shabazz’s car, and Officer Barragan went to the
passenger side. They asked Shabazz to roll down his window and
saw that he was alone. They asked for his identification. Shabazz
did not immediately provide identification, and he seemed
nervous. Officer Peralta smelled burnt marijuana, and he
believed Shabazz could have been committing the crime of
smoking marijuana in public or having an open marijuana
container in his car. Shabazz said he had been smoking cigarettes
and showed the officers his pack of cigarettes. Officer Peralta
2 Officer Peralta testified at Shabazz’s preliminary hearing.
3 The officers questioned the people in the car next to
Shabazz’s before approaching his car.
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noticed Shabazz was wearing a fanny pack, and believed the
fanny pack may have contained a weapon or narcotics.
Officer Peralta asked Shabazz to remove the fanny pack
then exit the car. Shabazz unclipped the fanny pack at some
point, but he did not exit his car. Instead, he drove his car into
the police car in an attempt to flee, but could not maneuver
around the police car. Shabazz collided into the police car twice.
Officer Peralta was walking to the police car during the first
collision, and he was in the police car during the second collision.4
Shabazz was going approximately five miles per hour during the
collisions. The officers yelled at Shabazz to stop and turn off his
car. After failing to flee, Shabazz eventually complied with the
officers’ commands.
Officer Peralta held Shabazz at gunpoint until other
officers arrived. After directing Shabazz to exit his car and
handcuffing him, Officer Peralta searched the car and discovered
a loaded firearm in the fanny pack.5 He did not find marijuana in
Shabazz’s car.
4 The officers spoke with Shabazz for a total of two or three
minutes before he drove into their car.
5 Officer Peralta believed Shabazz’s car contained evidence of
assault with a deadly weapon on a police officer.
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DISCUSSION
The Gun Was Obtained in Violation of Shabazz’s
Fourth Amendment Rights
As discussed in greater detail below, the officers detained
Shabazz when they parked behind him, and the detention was
unlawful because the officers did not have reasonable suspicion of
criminal activity when they initiated the detention. Moreover,
although the officers had the authority to search Shabazz when
they arrested him for hitting their car, they did not have the
authority to search his car, where they ultimately discovered the
gun. The gun evidence was therefore obtained in violation of
Shabazz’s Fourth Amendment rights.
A. Applicable Legal Principles
“The Fourth Amendment protects against unreasonable
searches and seizures. [Citations.]” (People v. Casares (2016) 62
Cal.4th 808, 837, disapproved on another ground by People v.
Dalton (2019) 7 Cal.5th 166, 214.) “In reviewing the trial court’s
suppression ruling, we defer to its factual findings if supported by
substantial evidence. We independently assess the legal question
of whether the challenged search or seizure satisfies the Fourth
Amendment. [Citation.]” (People v. Brown (2015) 61 Cal.4th 968,
975.)
A detention subject to Fourth Amendment requirements
“occurs when the officer, by means of force or show of authority,
has restrained a person’s liberty.” (People v. Zaragoza (2016)
1 Cal.5th 21, 56 (Zaragoza).) “‘When the actions of the police do
not show an unambiguous intent to restrain’ . . . the test for
determining if a seizure occurred is whether, “‘“in view of all of
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the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave[.]”
[Citations.]’”” (People v. Kopatz (2015) 61 Cal.4th 62, 79.)
“[A] detention must be supported by reasonable suspicion
the person is involved in criminal activity. [Citation.]” (Zaragoza,
supra, 1 Cal.5th at p. 56.) Reasonable suspicion exists “‘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.’ [Citation.]” (People v. Casares,
supra, 62 Cal.4th at pp. 837-838.)
If evidence is obtained following a detention not supported
by reasonable suspicion, the question “‘is whether the chain of
causation proceeding from the unlawful conduct has become so
attenuated or has been interrupted by some intervening
circumstance so as to remove the “taint” imposed upon that
evidence by the original illegality.’ [Citation.]” (People v. Brendlin
(2008) 45 Cal.4th 262, 268-269.)
Police officers are allowed to conduct warrantless searches
incident to lawful arrests. (Arizona v. Gant (2009) 556 U.S. 332,
338 (Gant).) This exception to the warrant requirement “derives
from interests in officer safety and evidence preservation that are
typically implicated in arrest situations. [Citations.]” (Ibid.) “[A]
search incident to arrest may only include ‘the arrestee’s person
and the area “within his immediate control” . . .’ [Citation.]” (Id.
at p. 339.) “That limitation, which continues to define the
boundaries of the exception, ensures that the scope of a search
incident to arrest is commensurate with its purposes of protecting
arresting officers and safeguarding any evidence of the offense of
arrest that an arrestee might conceal or destroy.” (Ibid.)
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B. Relevant Proceedings
Shabazz filed a motion to suppress the gun evidence,
arguing the gun was discovered because of an unlawful detention
conducted without reasonable suspicion. After Officer Peralta
testified at the preliminary hearing, the trial court heard
argument on the motion to suppress. The trial court concluded
Shabazz was not detained when the officers blocked his car. The
trial court then stated it believed the reason for the encounter
was to give Shabazz a loitering citation, though the trial court
acknowledged Officer Peralta had not stated that was his reason.
The trial court denied the motion to suppress.
Shabazz filed a section 995 motion to set aside the
information, again arguing his Fourth Amendment rights were
violated. At the hearing on the section 995 motion, the parties
submitted. Having reconsidered its previous rulings, the court
reached the following conclusions: (1) the officers detained
Shabazz when they parked behind him; (2) the officers had
probable cause to arrest Shabazz for assault on a peace officer for
hitting their car; and (3) even assuming the initial detention was
unlawful, nothing was seized during it, and the gun was properly
obtained during a lawful search of the fanny pack incident to
Shabazz’s arrest. For these reasons, the court denied Shabazz’s
motion to set aside the information.
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C. Analysis
We start with the question whether the officers detained
Shabazz when they parked behind him. We, like trial court,
conclude the answer is yes. It is true that the officers, in parking
behind Shabazz, did not show an unambiguous intent to restrain
him. We conclude, however, that a reasonable person in
Shabazz’s position would have believed, upon being blocked in by
the officers, that he was not free to terminate the encounter.
(See People v. Kopatz, supra, 61 Cal.4th at p. 79.) At the very
least, it is likely someone in Shabazz’s position would have
reasonably believed he needed the officers’ consent to leave and
for them to move their car before he could drive out of the
parking lot. We therefore reject the Attorney General’s contention
that the officers, in blocking Shabazz’s car, engaged in a
consensual encounter with him rather than a detention.
The next question is whether the officers had reasonable
suspicion Shabazz was involved in criminal activity when they
blocked his car. (Zaragoza, supra, 1 Cal.5th at p. 56.) We
conclude the answer is no. When the officers blocked Shabazz’s
car, all they knew was he had parked in a restaurant parking lot
known for prostitution and loitering. This fact alone did not rise
to the level of reasonable suspicion. (See People v. Souza (1994) 9
Cal.4th 224, 241 [mere presence in a high crime area, without
more, will not support a finding of reasonable suspicion sufficient
to justify a detention].)
Having concluded Shabazz was detained without
reasonable suspicion, the question becomes whether the taint of
illegality was removed from the firearm evidence due to an
intervening circumstance, namely the search incident to
Shabazz’s arrest for hitting the officers’ car. (People v. Brendlin,
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supra, 45 Cal.4th at pp. 268-269.) We conclude the answer is no.
Although Shabazz hitting the police car justified the officers
arresting him and conducting a lawful search incident to that
arrest, the Fourth Amendment prohibited the officers from
searching Shabazz’s car under the circumstances presented in
this case.
The United States Supreme Court’s decision in Gant,
supra, 556 U.S. 332 is controlling. Because the parties did not
address Gant in their initial briefs, we asked them to file
supplemental letter briefs addressing its applicability. For the
reasons discussed in the following paragraph, we agree with
Shabazz that reversal is warranted under Gant.
In Gant, the defendant “was arrested for driving with a
suspended license, handcuffed, and locked in the back of a patrol
car.” (Gant, supra, at p. 335.) Once he was in the back of the
patrol car, “officers searched his car and discovered cocaine in the
pocket of a jacket on the backseat.” (Ibid.) The Supreme Court
concluded the search of Gant’s car violated the Fourth
Amendment. (Gant, supra, at p. 335.) In support of its conclusion,
the Court explained “police may search incident to arrest only the
space within an arrestee’s ‘“immediate control,’” meaning ‘the
area from within which he might gain possession of a weapon or
destructible evidence.’ [Citation.]” (Ibid.) This principle governs
Shabazz’s case. Once the officers removed Shabazz from the car
and arrested him, objects in his car were no longer in his
immediate control for purposes of a lawful search incident to
arrest. And although the Supreme Court explained
“circumstances unique to the automobile context justify a search
incident to arrest when it is reasonable to believe that evidence of
the offense of arrest might be found in the vehicle” (Gant, supra,
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556 U.S. at p. 335), here, we cannot conclude it was reasonable
for the officers to believe evidence of Shabazz hitting the police
car might be found in his vehicle. The evidence of Shabazz hitting
the police car was the officers’ witnessing of the incident. In
short, the officers’ search of Shabazz’s car could not have
furthered the interests the search incident to arrest exception to
the warrant requirement is intended to promote—namely officer
safety and safeguarding evidence of the offense of arrest. (Id. at
p. 339.)
In its supplemental letter brief, the Attorney General
raises a separate argument why the search of Shabazz’s car was
lawful, contending “the officers had probable cause to search
[Shabazz’s] car and containers therein for evidence that
[Shabazz] had recently driven under the influence of marijuana.”
We are not persuaded. It is true, as the Attorney General points
out, that “[o]ther established exceptions to the warrant
requirement authorize a vehicle searched under additional
circumstances when safety or evidentiary concerns demand.”
(Gant, supra, 556 U.S. at p. 346.) One such exception is when
there is “probable cause to believe a vehicle contains evidence of
criminal activity.” (Id. at p. 347.) Here, however, we conclude the
officers did not have probable cause to search Shabazz’s car on
that basis.
“The probable-cause determination must be based on
objective facts that could justify the issuance of a warrant by a
magistrate and not merely on the subjective good faith of the
police officers.” (United States v. Ross (1982) 456 U.S. 798, 808.)
“[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.” (Illinois v. Gates (1983) 462 U.S. 213, 243, fn. 13.)
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Although Officer Peralta testified he smelled burnt marijuana,
and he believed Shabazz could have been committing the crime of
smoking marijuana in public or having an open marijuana
container in his car, Shabazz told the officers he had been
smoking cigarettes and showed them his pack of cigarettes.
Officer Peralta conceded that he did not find marijuana in
Shabazz’s car. On these facts, we discern no probability or
substantial chance of criminal activity. (See Illinois v. Gates,
supra, 462 U.S. at p. 243, fn. 13.) The officers did not have
probable cause to believe Shabazz had committed a crime related
to marijuana possession or use, as the objective facts merely
showed that he was lawfully smoking cigarettes. (See United
States v. Ross, supra, 456 U.S. at p. 808.)
For the above reasons, we conclude the firearm was
obtained in violation of Shabazz’s Fourth Amendment rights.
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DISPOSITION
The judgment is reversed and the cause remanded to the
trial court. That court is directed, upon the motion of Shabazz
within 30 days of the finality of this opinion, to vacate the no
contest plea, to reinstate the charges and allegations contained
in the information as moved for by the prosecution, and proceed
to trial or other appropriate disposition in accordance with the
views expressed in this opinion. Should Shabazz not so move,
or should he duly waive his right to so move, the trial court is
directed to reinstate the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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