Filed 8/19/15 P. v. Jackson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066137

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247846)

ALFRED JACKSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan and Melinda J. Lasater, Judges. Reversed.



         Steven A. Brody, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., Stacy Tyler, and Marilyn L. George, Deputy Attorneys General, for

Plaintiff and Respondent.
         A jury convicted Alfred Jackson of misdemeanor possession of marijuana.

(Health & Saf. Code, § 11357, subd. (c).) The court sentenced Jackson to five years

probation.

         Jackson appeals. He contends the trial court erred by denying his motion to

suppress evidence (Pen. Code, § 1538.5) and by denying his request for the release of

juror information following the verdict (Code Civ. Proc., § 237). We agree the court

should have granted Jackson's motion to suppress. Because that error was prejudicial, we

reverse Jackson's conviction. We therefore need not reach Jackson's second claim of

error.

                                          FACTS

         In April 2013, Jackson was seated in the front passenger seat of a parked Honda

Accord at the intersection of Skyline Drive and Billow Drive in San Diego. Chauncey

Smith was seated in the driver's seat. The area is known for high rates of crime,

including drug sales and prostitution. It was nighttime.

         Two police officers in a marked patrol car drove up and stopped in the middle of

the street, perpendicular to the Honda (forming a "T" shape), approximately 15 to 20 feet

away. The patrol car did not physically block the Honda. The police illuminated the

Honda with the patrol car's headlights and two spotlights. As the police officers exited

their patrol car, Jackson got out of the Honda, took several steps backwards, and stood on

the sidewalk. One of the police officers, Chris Cummings, walked towards Jackson,

covering the distance in four to five seconds. The officers were in full uniform with guns

and badges. Jackson appeared nervous. Cummings asked where Jackson and Smith

                                              2
lived. Smith pointed to the nearest house and said, "We live right there." A records

check revealed that neither Jackson nor Smith was listed as living at that address.

       Cummings could smell marijuana, but he was not sure whether it was coming

from Jackson or the Honda. Cummings told Jackson there had been a lot of crimes in

that area. Cummings asked whether Jackson was on probation or parole. Jackson said he

was on parole; a records check showed that Jackson was on federal parole. The check

did not reveal whether a Fourth Amendment waiver was a condition of Jackson's parole.

Cummings handcuffed Jackson for the officers' safety but told Jackson he was not under

arrest. Cummings searched Jackson's person and found $2,270 in cash and two cell

phones. One of the phones was a prepaid phone with no contacts, no call log, no

photographs, and no text messages.

       The police discovered Smith was on probation and subject to a Fourth Amendment

waiver. They searched the Honda and found two 1-gallon Ziploc bags containing

marijuana underneath the front passenger seat. It would have been impossible to sit in

the passenger seat and not see or smell the marijuana. Jackson was arrested and later

charged with possession of marijuana for sale. (Health & Saf. Code, § 11359.)

       At trial, police officers testified regarding the circumstances of Jackson's arrest

and the evidence found on his person and in the Honda. Jackson testified in his own

defense. He claimed the cash was a product of his home remodeling business and denied

knowing about the marijuana in the Honda. Jackson said he had two phones because his

older one was not working well. He explained that his girlfriend lived in the house near



                                              3
where the Honda was parked and he was visiting her that night. Other prosecution and

defense witnesses also testified.

                                       DISCUSSION

                                              I

       Prior to trial, Jackson moved to suppress evidence concerning the circumstances of

his arrest, the money and cell phones found on his person, and the marijuana found in the

Honda. (Pen. Code, § 1538.5.) Jackson argued that a warrantless search, as occurred

here, is presumptively illegal. (See People v. Williams (1998) 20 Cal.4th 119, 136.) The

district attorney opposed, and the court held an evidentiary hearing.

       At the evidentiary hearing, Cummings and his partner testified regarding Jackson's

arrest. They described their interactions with Jackson and Smith, their records checks,

and their search of Jackson and the Honda. Cummings said they noticed the Honda

because it was parked in an area of high narcotics use. During the encounter, neither

Cummings nor his partner drew their weapons or raised their voices.

       The trial court denied Jackson's motion to suppress. It found that the officers'

initial encounter with Jackson and Smith was consensual; it was not a detention for

purposes of the Fourth Amendment. The court explained, "it doesn't appear to me that

the officers' verbal and nonverbal actions had a coercive effect . . . that would indicate

someone was not free to leave." The court characterized the question as "close" but

concluded that Jackson had not been detained when Cummings approached him.




                                              4
                                             II

       "The Fourth Amendment to the United States Constitution prohibits the seizures of

persons, including brief investigative stops, when they are 'unreasonable.' [Citations.]

Our state Constitution has a similar provision. (Cal. Const., art. I, § 13.) A seizure

occurs whenever a police officer 'by means of physical force or show of authority'

restrains the liberty of a person to walk away." (People v. Souza (1994) 9 Cal.4th 224,

229.) "Challenges to the admissibility of evidence obtained by a police search and

seizure are reviewed under federal constitutional standards." (People v. Schmitz (2012)

55 Cal.4th 909, 916.)

       "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. [Citations.] Our present inquiry concerns the

distinction between consensual encounters and detentions. Consensual encounters do not

trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no

articulable suspicion that the person has committed or is about to commit a crime." (In re

Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)

       No party to this appeal contends the police had any articulable suspicion that

would justify a detention when police approached the Honda in which Jackson was

sitting. We must therefore determine whether Jackson's encounter with police was

consensual or whether it was an illegal detention.

                                              5
       "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 physically 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." (Manuel G., supra, 16 Cal.4th at p. 821.)

       "The standards for appellate review of the trial court's determination on a motion

to suppress pursuant to [Penal Code] section 1538.5 are well settled. The trial court's

factual determinations are reviewed under the deferential substantial evidence standard;

its determination of the applicable rule of law is scrutinized under the standard of

independent review. [Citation.] We independently assess as a question of law whether,

under such facts as found by the trial court, the challenged action by the police was

constitutional." (People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56; see People v.

Zamudio (2008) 43 Cal.4th 327, 342.)



                                             6
       The parties, here as in the trial court, have analogized this case to People v. Garry

(2007) 156 Cal.App.4th 1100 (Garry), in which an illegal detention was found on similar

facts. In Garry, a police officer in a marked police vehicle was patrolling a high-crime

area. (Id. at p. 1103.) The court related the circumstances of the detention as follows:

"[The officer] turned on the patrol car's spotlight, which emitted a white light, and

illuminated defendant. [The officer] exited his car, which was 'probably' about 35 feet

away from defendant, and noticed that defendant looked nervous. [The officer] started

walking 'briskly' toward him, and defendant '[w]ith a look of kind of nervousness and

shock, he started, like, walking backwards . . . and he spontaneously stated, "I live right

there," and he pointed to a house on his right.' [The officer] continued to walk toward

defendant, said, 'Okay, I just want to confirm that,' and asked defendant if he was on

probation or parole. Defendant said he was on parole. After hearing this information,

[the officer] decided to detain defendant to find out why he was there." (Id. at p. 1104.)

       Garry concluded that the defendant had been detained before the officer began to

ask any questions. (Garry, supra, 156 Cal.App.4th at p. 1112.) "No matter how politely

[the officer] may have stated his probation/parole question, any reasonable person who

found himself in defendant's circumstances, suddenly illuminated by a police spotlight

with a uniformed, armed officer rushing directly at him asking about his legal status,

would believe themselves to be 'under compulsion of a direct command by the officer.'

[Citation.] [The officer's] actions set an unmistakable 'tone,' albeit largely through

nonverbal means, 'indicating that compliance with the officer's request might be

compelled." (Ibid.)

                                              7
       The facts here differ from Garry in several ways. On one hand, aspects of the

police show of force here would be less intimidating to a reasonable person. The officers

did not rush towards Jackson and Smith; they walked calmly toward them. (See Garry,

supra, 156 Cal.App.4th at p. 1112.) The officers also began by questioning whether

Jackson and Smith lived in the neighborhood, instead of first asking about their legal

status. (See id. at pp. 1111-1112.) On the other hand, aspects of the police show of force

here would be more intimidating to a reasonable person. Two police officers were

involved here, rather than just one.1 Two spotlights were used to illuminate the Honda,

rather than just one. The officers also stopped their car in an unusual manner,

perpendicular to the curb and aimed directly at the Honda only 15 to 20 feet away. The

officers here exited their car immediately after stopping and walked towards the Honda.

By contrast, in Garry, the police officer parked his car 35 feet away, and the officer

illuminated the defendant and exited the car after five to eight seconds of observation.

(Garry, supra, 156 Cal.App.4th at pp. 1104, 1111.) On balance, we conclude the

circumstances here were more intimidating than those present in Garry. Garry therefore

counsels against the conclusion the encounter here was consensual.

       Considering the circumstances as a whole, a reasonable person in Jackson's

position would not have felt free to leave the scene at the time the police approached him.

(See Manuel G., supra, 16 Cal.4th at p. 821; Garry, supra, 156 Cal.App.4th at pp. 1111-



1      In Garry, a "ride-along," who does not appear to be a police officer, was present in
the police car but did not exit the vehicle. (Garry, supra, 156 Cal.App.4th at p. 1104.)

                                             8
1112.) As Jackson sat in the Honda, a marked patrol car stopped in the middle of the

street, perpendicular to the Honda, approximately 15 to 20 feet away. (See People v.

Jones (1991) 228 Cal.App.3d 519, 523 [finding detention where, among other

circumstances, police "parked [the police car] diagonally against traffic"].) The patrol car

illuminated the Honda with its headlights and two spotlights. Two uniformed police

officers, with badges and guns, immediately exited the patrol car, approached the Honda,

and began asking questions. The authority on display was clear.2 Even though the

officers did not physically block Jackson or the Honda from leaving, a reasonable person

would not have felt free to disregard the police and leave the scene. Because the police

did not have any articulable suspicion concerning Jackson, he was illegally detained.

(See Manuel G., at p. 821; Garry, at pp. 1111-1112.)

       The evidence obtained following Jackson's detention must be excluded as "fruit of

the poisonous tree" unless it was obtained by means sufficiently distinguishable to be

purged of the taint of the illegal detention. (Wong Sun v. United States (1963) 371 U.S.

471, 488; People v. Brendlin (2008) 45 Cal.4th 262, 268.) Despite Jackson's discussion

of this principle in his opening brief, the Attorney General does not invoke this exception

or provide any reason why it should be applied here.



2       We note that Cummings, the police officer who questioned Jackson, testified that
he did not believe Jackson was free to go at the time he and his partner pulled their patrol
car up to the Honda. Our Supreme Court has held that an officer's "uncommunicated
state of mind . . . [is] irrelevant in assessing whether a seizure triggering Fourth
Amendment scrutiny has occurred." (Manuel G., supra, 16 Cal.4th at p. 821.) We are
bound to adhere to this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
                                             9
       Instead, the Attorney General argues, without any citation to authority, that the

evidence would have been "inevitably discovered." "The inevitable discovery doctrine

acts as an exception to the exclusionary rule, and permits the admission of otherwise

excluded evidence 'if the government can prove that the evidence would have been

obtained inevitably and, therefore, would have been admitted regardless of any

overreaching by the police.' " (People v. Hughston (2008) 168 Cal.App.4th 1062, 1071.)

"[T]o justify application of the inevitable discovery exception, respondent must

demonstrate by a preponderance of the evidence that, due to a separate line of

investigation, application of routine police procedures, or some other circumstance, [the

challenged evidence] would have been discovered by lawful means. The showing must

be based not on speculation but on 'demonstrated historical facts capable of ready

verification or impeachment. [Citation.] The inevitable discovery exception requires the

court ' "to determine, viewing affairs as they existed at the instant before the unlawful

search, what would have happened had the unlawful search never occurred." ' " (Id. at

p. 1072.) Here, there was no independent investigation or other police work involving

Jackson prior to the illegal detention. The contention that, absent that detention,

incriminating evidence regarding Jackson would have been found by other means is

speculation. The Attorney General points to the smell of marijuana, but that smell was

only discovered as a result of the illegal detention. It therefore cannot provide a basis for

the inevitable discovery doctrine.

       The Attorney General also appears to argue that Jackson's status as a federal

parolee can prevent the exclusion of the challenged evidence. There is no evidence,

                                             10
however, that Jackson's federal parole included a Fourth Amendment waiver. Moreover,

in order to justify a detention, police officers must be aware of the waiver prior to the

challenged search. (See People v. Sanders (2003) 31 Cal.4th 318, 335.) An illegal

detention or search is not lawful merely because an officer subsequently discovers facts

that would have provided a basis for the detention or search. (See ibid.)

       Accordingly, the trial court erred when it found Jackson had not been detained and

denied Jackson's motion to suppress. Admission of the challenged evidence violated

Jackson'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. Given the nature of the challenged

evidence, the prejudicial effect of the error is clear.




                                               11
                                 DISPOSITION

     The judgment is reversed.



                                               O'ROURKE, J.

WE CONCUR:



MCDONALD, Acting P. J.



MCINTYRE, J.




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