Filed 1/28/15 P. v. Summage CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067237
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF140863A)
                   v.

SYLVESTER MACK SUMMAGE, JR.,                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.

         JuNelle Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before Cornell, Acting P.J., Gomes, J. and Peña, J.
                                       INTRODUCTION
       Following denial of his motion to suppress evidence, defendant Sylvester Mack
Summage, Jr., pled no contest to possessing methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)) and admitted serving a prior prison term (Pen. Code,1 § 667.5, subd.
(b)). He was sentenced to a total of four years in state prison.
       On appeal, defendant asserts the trial court erred in denying his motion to suppress
evidence because the detention was unlawful. Hence, he argues the fruits of that
detention should have been excluded. Defendant also asks this court to independently
review the materials disclosed in camera pursuant to his motion made under Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess) to ensure all materials subject to
disclosure were in fact provided to the defense. We reverse, finding his motion to
suppress should have been granted.
                BRIEF FACTUAL2 & PROCEDURAL BACKGROUND
       On February 22, 2012, about 10:30 p.m., Bakersfield police officer Jason Mears
and his partner were patrolling in the 1500 block of Palm Drive. The officers noticed two
individuals walking in the middle of the roadway. Defendant was identified as one of the
two individuals. Mears stated that once defendant saw the officers, he “split apart” from
the other individual and began to walk away. The officer testified he attempted to “make
contact” with defendant, who then “reached into his sweatshirt” and “threw his arms
away, tossing an object.” Mears testified he tried to make contact with defendant because
walking in the middle of the roadway is a violation of Vehicle Code section 21956,
subdivision (a).3


       1Further statutory references are to the Penal Code unless indicated otherwise.

       2The facts are taken from the testimony given at the hearing on defendant’s motion to
suppress.
       3That section provides as follows: “No pedestrian may walk upon any roadway outside
of a business or residence district otherwise than close to his or her left-hand edge of the
roadway.”


                                                 2.
       The object defendant tossed away was a plastic bag the officer believed contained
narcotics and, more specifically, methamphetamine. It landed about five feet from
defendant on top of a green waste can. Mears seized the bag of suspected narcotics,
arrested defendant, and performed a search incident to arrest. On that occasion, the
officer located a small black plastic bag containing more methamphetamine in
defendant’s right front coin pocket.
       On cross-examination, Mears indicated there were no sidewalks in this area of
Palm Drive, and the patrol car was the only traffic in the area at the time. Mears made a
traffic enforcement stop, stepping out of his patrol car. Defendant continued walking.
The officer thereafter told defendant “to stop and remove his hands from his pockets.”
The officer so directed because defendant was in violation of Vehicle Code section
21956, subdivision (a). After telling defendant to stop and remove his hands, defendant
did so, throwing something from his pocket.
       On redirect, Officer Mears testified defendant was “walking southbound in the
middle of the roadway” or “dead smack in the middle of the roadway.”
       No other witnesses were called, and the court entertained argument from both
parties. Defense counsel argued Mears had no probable cause to detain or arrest
defendant because walking in the street in a residential area does not amount to a
violation of Vehicle Code section 21956, subdivision (a) pursuant to People v. Cox
(2008) 168 Cal.App.4th 702. Further, counsel argued that, absent the illegal detention,
the narcotics would not have been found and should therefore be suppressed. After
abandoning their argument that Vehicle Code section 21956, subdivision (a) did provide
Officer Mears with authority for the stop, the People argued that by throwing the
narcotics away as he raised his hands, defendant’s action amounted to an intervening
circumstance that cured the taint of the illegal detention, if detention had occurred at that
point. And, when defendant abandoned the property, the officer “had every right to
search” that property, leading “to the probable cause to search the defendant.”
       The trial court then ruled as follows:

                                                3.
              “All right. As far as the stated reason for the stop, that would not
       permit said stop. I think we’re all in agreement now. I think the officer
       agrees with that.

               “Now that we’ve read this case—I know I wasn’t familiar with it,
       and Mr. [Prosecutor], neither were you. However, I’m not sure … either
       that the evidence would support a stop under [Vehicle Code section]
       21954(a).

               “I’m going to find that even though the initial saying of the word or
       order of stop was not supported by the evidence,[4] that the defendant
       abandoned property and threw it, and that intervening act took away taint of
       an illegal detention. Once the officer then saw an item tossed by the
       defendant that he thought was methamphetamine or suspected to be
       methamphetamine, he had a right to. [¶] The motion is denied.”
                                       DISCUSSION
The Motion to Suppress Evidence
       Defendant contends the trial court erred in denying his motion to suppress
evidence because all of the evidence seized was the result of an unlawful detention.
Plaintiff disagrees.

       “In ruling on a motion to suppress, the trial court must find the historical
       facts, select the rule of law, and apply the rule to the facts in order to
       determine whether the law as applied has been violated. [Citation.] We
       review the trial court’s resolution of the factual inquiry under the
       deferential substantial evidence standard. [Citation.] Selection of the
       applicable law is a mixed question of law and fact that is subject to
       independent review. [Citation.]” (People v. Gonzales and Soliz (2011) 52
       Cal.4th 254, 284.)
       A.     The Reason for the Stop
       Officer Mears testified he believed defendant had violated Vehicle Code section
21956, subdivision (a) by walking in the middle of the roadway, and this was the basis
for contacting defendant. However, because defendant was walking in a residential area,
he had not violated that section. (People v. Cox, supra, 168 Cal.App.4th at pp. 708-709
[Veh. Code, § 21956, subd. (a) “only restricts pedestrians from walking on roadways

       4On cross-examination, Mears testified he “told” defendant to “stop.”



                                              4.
outside of business or residential districts”].) The trial court agreed: “As far as the stated
reason for the stop, that would not permit said stop. I think we’re all in agreement now.”
Hence, Officers Mears did not have reasonable cause to detain defendant. Plaintiff does
not argue otherwise.
       B.     Defendant Was Detained
       Defendant maintains he was unlawfully seized before the plastic bag was
discarded because Officer Mears “made a show of authority” by exiting his patrol car and
ordering defendant to stop and remove his hands from his pockets. Defendant
immediately submitted to Mears’s show of authority. He did not attempt to flee. More
specifically, defendant alleges the “unlawful seizure was effective when [he] complied
with Officer Mears’ orders that he stop and take his hands out of his pockets, which
occurred before the plastic bag was discarded.” Plaintiff argues “there [was] not a
scintilla of evidence supporting” defendant’s claim that he was unlawfully seized at the
time he discarded the plastic bag.
       A detention within the meaning of the Fourth Amendment occurs when, in view of
all of the surrounding circumstances, a reasonable person would believe that he or she
was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554; Wilson v.
Superior Court (1983) 34 Cal.3d 777, 790.)

               “[W]hen an officer ‘commands’ a citizen to stop, this constitutes a
       detention because the citizen is no longer free to leave. (See People v.
       Bower (1979) 24 Cal.3d 638.) In Bower, as appellant proceeded through a
       passageway, a police officer ordered him to stop and turn around. (Id., at p.
       643.) The Bower court concluded the officer’s directive to stop constituted
       a detention because it clearly ‘restrain[ed] his freedom to walk away.’
       (Ibid.)” (People v. Verin (1990) 220 Cal.App.3d 551, 556, fn. omitted.)
       The United States Supreme Court clarified in California v. Hodari D. (1991) 499
U.S. 621, 627-628, that even where an officer attempts to effect a seizure by a show of
authority, if the targeted individual does not submit to that authority, no seizure has
occurred.



                                              5.
       Here, we find Mears intended to detain defendant when he directed defendant to
stop and to remove his hands from his pockets. Further, we find defendant submitted to
Mears’s authority by complying with Mears’s command that he “stop” and “remove his
hands from his pockets.” Mears’s directive to “stop” restrained defendant’s freedom to
walk away.
       Plaintiff cites to a number of authorities in support of her assertion there was no
detention. Nevertheless, those cases are factually distinguishable. In the majority of
those cases, the defendant fled from the law enforcement officer. (California v. Hodari
D., supra, 499 U.S. at pp. 622-626 [juveniles fled at approach of unmarked police car,
suspect tossed away rock cocaine while being pursued]; Michigan v. Chesternut (1988)
486 U.S. 567, 569-570 [defendant saw patrol car nearing the area then “turned and began
to run”; officers observed him discard packets as they drove alongside him]; People v.
Green (1994) 25 Cal.App.4th 1107, 1109-1110 [during narcotics investigation, defendant
observed carrying brown bag into and out of a residence known for drug activity; when
patrol officers activated their lights, driver of car in which defendant was a passenger
“accelerated and attempted to elude the deputies.” When vehicle crashed, defendant
threw a handgun and the brown bag containing cocaine underneath car]; see In re
Kemonte H. (1990) 223 Cal.App.3d 1507, 1510 [defendant saw police nearing, dropped
brown paper bag, turned and fled; the officer had “said nothing” to defendant at that
point]; People v. Nickleberry (1990) 221 Cal.App.3d 63, 66-67 [defendant made eye
contact with gang intelligence officer in unmarked vehicle wearing police raid jacket, put
hands in pockets, then took off running. The officer had not done or said anything to
defendant at that point. As defendant ran, he dropped rock cocaine to the ground; he
continued to run, eventually stopping when ordered to do so].) In this case, unlike the
foregoing cases, defendant did not flee or attempt to flee in response to either Mears’s
presence or his command to stop.
       The one case cited by plaintiff that did not involve a fleeing suspect is also
factually distinguishable. In In re Christopher B. (1990) 219 Cal.App.3d 455, street gang

                                             6.
task force officers approached a group of 20 to 25 suspected gang members in a public
park. The group members began to walk away. Although not singled out in any way by
the officers, Christopher lagged behind the other members of the group, then looked
around, pulled an item from his waistband, and tossed it to the ground. That item
contained 14 “rocks” of cocaine base. (Id. at pp. 458-459.) Unlike Christopher B.,
defendant here was singled out by Mears and was ordered to stop and remove his hands
from his pockets.
      A review of the testimony given at the hearing on the motion to suppress reveals
Officer Mears and his partner observed two men walking in the roadway. When those
men saw the officers, they separated from one another. When Mears stepped out of his
patrol car, defendant continued walking. The officer then directed defendant “to stop and
remove his hands from his pockets.” As defendant removed his hands from his pockets,
he threw something away. Here then, Mears effected a seizure by a show of authority,
and defendant immediately responded by submitting to that authority.
      C.     The Fruit of the Poisonous Tree
      Having concluded the initial detention was unlawful, we turn to an analysis of
whether the evidence obtained should be suppressed as fruit of the poisonous tree. (See
Wong Sun v. United States (1963) 371 U.S. 471, 484-488.)

             “Broadly speaking, evidence may be excluded as ‘fruit of the
      poisonous tree’ where its discovery ‘results from’ or is ‘caused’ by a Fourth
      Amendment violation. [Citation.] Exclusion is not required, however,
      where the evidentiary ‘fruit’ is derived from a source that is independent of
      the ‘poisonous’ conduct or where ‘“the connection between the lawless
      conduct of the police and the discovery of the challenged evidence has
      ‘become so attenuated as to dissipate the taint.’”’ [Citation.] The ‘fruit of
      the poisonous tree’ theory contemplates evidence being discovered along a
      causal ‘time line’ or ‘road,’ beginning at the ‘poison’ of a Fourth
      Amendment violation, and ending at the ‘fruit’ of newly discovered
      information, witnesses, or physical evidence. [Citation.] When the time
      line becomes too attenuated, or the causal ‘road’ is blocked by an
      intervening, independent act, the ‘poison’ is declared purged and its
      evidentiary ‘fruit,’ is admissible.” (In re Richard G. (2009) 173
      Cal.App.4th 1252, 1262.)

                                           7.
Factors relevant to an attenuation analysis “include the temporal proximity of the Fourth
Amendment violation to the procurement of the challenged evidence, the presence of
intervening circumstances, and the flagrancy of the official misconduct.” (People v.
Boyer (2006) 38 Cal.4th 412, 448; see Brown v. Illinois (1975) 422 U.S. 590, 603-604.)
       The temporal proximity of defendant’s illegal detention to his tossing the object as
he removed his hands from his pockets was immediate. (People v Verin, supra, 220
Cal.App.3d at p. 560 [“There is no question as to the proximity because just moments
after [the officer] yelled, ‘Hold on,’ appellant discarded the heroin”].)
       The flagrancy and purposefulness of the official or police misconduct has been
said to be the most important factor because “‘it is directly tied to the purpose of the
exclusionary rule—deterring police misconduct.’” (People v. Brendlin (2008) 45 Cal.4th
262, 271.) Here, it cannot be said evidence at the suppression hearing revealed Mears
concocted defendant’s detention or arrest, or acted in bad faith amounting to misconduct.
It revealed that Mears did not have reasonable cause to detain or arrest defendant for
violating Vehicle Code section 21956, subdivision (a) due to a mistake of law. We do
note, however, that “[Vehicle Code s]ection 21956, subdivision (a) was enacted over 40
years ago. [Citation.] This is more than enough time for any California police
department to analyze and properly instruct its officers that pedestrians can legally walk
in the roadway in a business or residential district. [Citation.]” (People v. Cox, supra,
168 Cal.App.4th at pp. 710-711.)
       Significantly here, we now turn to whether an intervening circumstance existed
that would purge the primary taint of the illegality. The trial court denied defendant’s
motion to suppress, specifically finding “defendant abandoned [the] property and threw
it, and that intervening act took away [the] taint of an unlawful detention.”

       “In determining whether the abandonment breaks the causal connection
       between the detention and the act of abandonment, courts look to whether
       the action was ‘sufficiently an act of free will.’ [Citations.] This
       determination demonstrates whether the evidence was brought about by
       exploitation of the illegality or, instead, by means sufficiently


                                              8.
       distinguishable to be purged of the primary taint. [Citation.]” (People v.
       Verin, supra, 220 Cal.App.3d at p. 559.)
The officers in Verin were conducting an investigation of drug activity in the Papago
Court area. One of the officers stopped the defendant and his friend who were walking in
a high crime area at 7:25 p.m. The defendant continued walking after the officer said,
“‘Hold it. Police’” or “‘Hold on. Police.’” (Id. at p. 554.) The defendant then dropped
some heroin he had pulled from his pocket onto the ground before returning to the
officer. (Ibid.) The court concluded the officer had detained the defendant when he
ordered him to stop, and the detention was unreasonable under the circumstances because
the defendant had only walked through a high crime area in the early evening. The
officer had not observed any facts that suggested the defendant was involved in drug
activity. (Id. at p. 558.) Similarly here, Mears detained defendant when he ordered him
to stop, and Mears directed defendant to remove his hands from his pockets. Further, the
detention was unreasonable under the circumstances because defendant had not violated
Vehicle Code section 21956, subdivision (a) by walking down the middle of the
residential roadway in the 1500 block of Palm Drive. Neither did Officer Mears testify to
any facts that would suggest defendant was involved in drug activity. In this case,
nothing happened between the detention and discovery of the evidence that would
“purge” the primary taint. Defendant’s act of tossing the plastic bag as he removed his
hands from his pockets was not “sufficiently an act of free will.” After the detention,
defendant did nothing but comply with Mears’s commands. The search, therefore, is still
tainted by the illegality of the detention and the evidence should have been suppressed.
Thus, the trial court erred in denying defendant’s motion to suppress the evidence.
       Lastly, we cannot find this error harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24.) The methamphetamine evidence comprised the
entire case against defendant. (Cf. People v. Minjares (1979) 24 Cal.3d 410, 424.)




                                            9.
       Because we will reverse the judgment, we do not reach defendant’s request that
we independently review the Pitchess materials to ensure discoverable documents were
not improperly withheld.
                                     DISPOSITION
       The judgment is reversed. The order denying the motion to suppress is vacated,
and the trial court is ordered to make a new order granting the motion to suppress.




                                           10.
