Filed 10/8/15
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A145052
v.
NICOLE THERESA LINN,                                 (Napa County
                                                     Super. Ct. No. CR169702)
        Defendant and Appellant.


        After the Napa County District Attorney filed a criminal complaint in Napa
County Superior Court charging defendant Nicole Theresa Linn with misdemeanor
driving under the influence of alcohol, defendant filed a motion under Penal Code
section 1538.5 to suppress the evidence upon which the People relied. She contended she
had been unlawfully detained prior to the police obtaining this evidence in violation of
her Fourth Amendment rights against unlawful search and seizure. The trial court, a
court commissioner presiding, agreed and granted her motion. The appellate division of
the superior court reversed this decision, concluding defendant’s encounter with the
police officer who arrested her was consensual up to the time that he reasonably
suspected she had been driving under the influence.
        The appellate division certified the case for transfer to this court to resolve a
conflict among our appellate courts regarding the significance of a police officer taking a
person’s voluntarily offered identification card in evaluating whether their encounter is
consensual or a detention. We ordered the case transferred. We agree with the appellate
division’s rejection of a bright-line rule about an officer’s taking of a voluntarily offered
identification card. However, substantial evidence indicates that the officer’s actions
reviewed in their totality constituted an assertion of his coercive authority before he had
                                               1
any reasonable suspicion to detain defendant. These actions included his stopping within
three feet of defendant as she exited her vehicle to, as he told her, talk with her about her
passenger’s flicking ashes out of the vehicle’s window as defendant drove, asking her for
her driver’s license without explanation as he commanded her to put out her cigarette and
put down her soda can, retaining her driver’s license as he conducted an unexplained
record check, and questioning of the passenger for personal details that the officer
recorded on a form. No objectively reasonable person would believe she was free to end
this encounter under the totality of these circumstances, regardless of the officer’s polite
demeanor and relatively low-key approach. We reverse the appellate division’s decision
and affirm the trial court’s order granting defendant’s suppression motion on the ground
that she was unlawfully detained before the officer had a reasonable suspicion that she
had been driving under the influence.
                                     BACKGROUND
       In February 2014, the Napa County District Attorney filed a criminal complaint
charging defendant with one count each of misdemeanor driving under the influence of
alcohol (Veh. Code, § 23152, subd. (a)) and misdemeanor driving with a blood alcohol
concentration of 0.08% or higher (Veh. Code, § 23152, subd. (b)). Defendant pled not
guilty to both counts.
                                              I.
                             Defendant’s Motion to Suppress
       In May 2014, defendant filed her suppression motion, which the People opposed,
and a hearing was held, presided over by a court commissioner. At the onset, the People
stipulated defendant was detained without a warrant; therefore, as the court then noted, it
was the People’s burden to justify the detention. The People did so by arguing the
encounter was consensual up to the time the arresting officer, City of Napa Police
Department Officer Thomas Helfrich, reasonably suspected defendant was driving under
the influence of alcohol. Helfrich testified, a video recording of a part of the encounter
captured on his body camera was admitted into evidence and played, and defendant


                                              2
testified on her own behalf. After this presentation of evidence and argument by counsel,
the trial court granted the motion.1
   A. Officer Helfrich’s Testimony
       Officer Helfrich testified that he was on patrol in Napa dressed in full uniform,
riding on a marked police motorcycle on the morning of January 29, 2014. While
stopped at Division and Franklin Streets facing west, he saw a Ford Expedition2 with a
driver and passenger inside turn left onto westbound Division Street. The passenger held
what appeared to be a lit cigarette out an open window and Helfrich “just saw a quick
flick of the fingers, which appeared to be he was flicking the ashes out the window.”
Helfrich understood the passenger’s action violated the Vehicle Code.
       Helfrich said he drove toward the Expedition, which had parked in a parking stall
on Division Street before he reached it. He stopped “next to the car,” parked his
motorcycle “approximately three feet, maybe more, from the driver side door area,” and
got off his motorcycle as the defendant driver and the passenger were getting out of the
Expedition. Helfrich did not turn on lights or sirens, block defendant’s pathway, display
his weapon, or comment about whether the two were free to leave.
       Helfrich said he contacted the passenger and spoke to defendant, who stood near
him by the driver side compartment of the Expedition. He told defendant “[t]he reason
for my contact was because . . . the passenger . . . was flicking ashes out of the window.”
He asked the passenger “[w]hy he was flicking ashes out the window, what his name
was, . . . general information.” The passenger responded to Helfrich’s question about
flicking the ashes, “ ‘I don’t know.’ ”



       1
         Ordinarily, we state the facts in the light most favorable to the trial court’s
ruling. (People v. Berkeley (1978) 88 Cal.App.3d 457, 459, fn.1.) In this case the facts
were undisputed with one exception (whether or not Helfrich told defendant to stay
where she was) that is not consequential to our analysis.
       2
        The reporter’s transcript indicates Helfrich referred to defendant’s vehicle both
as an Explorer and an Expedition. For clarity’s sake, we refer to it as an Expedition,
which was how defendant identified it in her testimony.

                                             3
       On direct examination, Helfrich said he turned on his body camera “[r]ight after”
getting off his motorcycle, and a portion of the resulting video was then played and
admitted into evidence. Helfrich said he “had a brief conversation with [defendant]” and
“started smelling alcohol coming from her” within a minute. On redirect, however, he
revised this time estimate, saying he first noticed defendant smelled of alcohol “[o]ver
two minutes” after he first stopped her.
       Helfrich said that when he smelled alcohol he asked defendant if she had been
drinking and she suggested he was smelling her perfume. He checked her horizontal
gaze nystagmus, asked her questions about her drinking, administered a breath test,
concluded she had been driving while under the influence and arrested her.3
       On cross-examination, Helfrich acknowledged that he might have asked defendant
questions before he turned on his body camera. He said it was a safe assumption that he
asked her name and to see her driver’s license before turning on his body camera because
he asked those questions and neither was on the video recording. He also said that when
defendant offered her license to him, he took it and held it in his hand as he called
dispatch and ran a record check on defendant. These events are not depicted on the video
recording either.
       Helfrich also testified on cross-examination that defendant did not get out of the
Expedition in response to any request by him or try to walk away, and that he did not tell
her not to go anywhere. He could not recall if she was smoking a cigarette, but said if
she was, he would have told her to put it out since he “always tell[s] people to put out
their cigarettes.” He took down the passenger’s personal information and ran a records
check on him, but did not write a citation for him or defendant. Helfrich did not believe
that defendant had violated any Vehicle Code section.




       3
         The parties did not dispute the propriety of defendant’s detention and arrest once
Helfrich smelled alcohol. They focused at the hearing and focus in this appeal on the
events that occurred before he did so.

                                              4
   B. Defendant’s Testimony
        Defendant testified that she parked her Ford Expedition and was getting out when
she first saw Helfrich, who was sitting on a motorcycle parked right next to her car. The
first thing he said to her was that he “noticed my passenger flicking ashes out the
window.” He asked for her driver’s license. She was smoking and drinking a can of
soda, and Helfrich “asked me to put [the cigarette] out” and “put [the can] down.”4 He
did not turn on his emergency lights or siren, use a blow horn, raise his voice or block her
path.
        When asked whether she tried to walk away from Helfrich at any point, defendant
answered “[n]o,” but stated that “he wouldn’t let me walk off.” She then testified that she
“tried to walk away when I got out of my vehicle” and that Helfrich “asked me to stand
there, stay there.” In response to further questioning, she clarified that she turned to walk
away after Helfrich asked for her driver’s license, told her to put out her cigarette and put
down her soda, and started talking to her passenger. He then told her to stay where she
was.
   C. The Body Camera Video Recording
        The reporter’s transcript of the hearing indicates that during Helfrich’s testimony,
the first three minutes and forty-six seconds of his body camera video recording was
played for the court and admitted into evidence as People’s Exhibit 1. We have obtained
this exhibit from the superior court and taken judicial notice of the video segment that
was admitted into evidence.
        At first on this recording, a police motorcycle can be seen in the left-hand part of
the screen, parked at a diagonal a few feet from a vehicle, on the vehicle’s driver’s side
and towards its front. A voice––apparently Helfrich’s––asks a man smoking a cigarette
standing about five to ten feet in front of the motorcycle––apparently the passenger––
why he flicked cigarette ashes out the window. The passenger says he does not know.

        4
         The People did not dispute these facts. Helfrich testified only that he did not
recall whether defendant was smoking or drinking soda, and that his practice was to tell
individuals who were smoking to put out their cigarettes.

                                              5
When Helfrich asks him if he had an ashtray, the passenger turns to a woman––
apparently defendant––who is perhaps two feet from Helfrich standing by the open
driver’s side door. Soon thereafter, Helfrich can be seen filling out a form while asking
the passenger his date of birth and middle name, and can be heard calling someone on his
police radio.
       Helfrich then turns to defendant and says, “I’m smelling alcohol right now.”
Defendant reaches into her car, turns and shows him a bottle of pink liquid and suggests
he is smelling it. He indicates he is not.
       Helfrich continues with his police radio call, in which he states the passenger’s
name and birth date. He asks the passenger for his residence address, his driver’s license
number, whether he indicates he is “Hispanic” or “White” on applications, his height and
weight, and writes the passenger’s answers on the form. Helfrich then tells defendant to
stand next to him, checks her eyes and investigates her sobriety.
   D. The Arguments
       Defense counsel argued that Helfrich’s conduct up until when he smelled alcohol
constituted an illegal detention without reasonable suspicion or probable cause. This
included that he asked defendant to identify herself and for her driver’s license, ran a
records check, and told her to put out her cigarette, put down her soda and stay where she
was. Said defense counsel, “[T]his is most certainly a situation where [defendant] is no
longer free to walk away, and she’s being restrained without reasonable suspicion or
probable cause.” Defense counsel cited People v. Castaneda (1995) 35 Cal.App.4th 1222
(Castaneda) as holding that once an officer takes possession of an individual’s
identification “that person is no longer free to leave.”
       The prosecution argued that an officer needed no reasonable suspicion of a crime
to approach someone in a public place and ask questions, and that this is “exactly what
the officer did here.” She cited United States v. Mendenhall (1980) 446 U.S. 544
(Mendenhall) and People v. Gonzales (1985) 164 Cal.App.3d 1194 (Gonzales) as holding
that police may “ask for identification and hold onto it.” She argued that the absence of
such factors as the “threatening presence of several officers, displaying of a weapon,

                                              6
physical touching, language or tone indicating that compliance is compelled”
demonstrated that this was a consensual encounter rather than a detention. She noted
defendant “parked her vehicle on her own volition” and Helfrich testified he did not tell
her to go anywhere or block her path as further factors indicating the encounter was
consensual. In the alternative, she argued, Helfrich had reasonable suspicion to detain
defendant because he believed there had been a Vehicle Code violation, as Vehicle Code
section 23111 prohibits a person in a vehicle from throwing onto a road a lighted or
unlighted cigarette.
   E. The Trial Court’s Ruling
       The trial court noted that Helfrich saw the passenger flicking ashes, and found
Helfrich did not conduct a traffic stop because he “didn’t stop the vehicle” and contacted
defendant and the passenger only after they “were out of the vehicle.” Therefore, the
court determined, “we are not talking about initiating a stop.” The court did not think
“that the passenger having being suspected of flicking ashes would justify detaining the
defendant” under these circumstances. “So, the question is whether it was a detention of
[defendant] versus consensual contact with her.”
       Counsel and the court discussed the significance of Castaneda, supra,
35 Cal.App.4th 1222, which held that Castaneda was detained when an officer took his
voluntarily given driver’s license. (Id. at p. 1227.) The prosecutor then cited various
factors that courts have considered in determining whether or not a person’s encounter
with police is consensual. The court responded:
       “Those are factors. But Castaneda is saying that holding the license and running
the check is a definitive factor that equals a detention whether or not you have those other
factors.
       “You know, we do also in this case have the commands of putting out the
cigarette, and which the officer didn’t testify to, but he did say that was his practice. So,
that leads me to find the defendant credible in her testimony in that regard.
       “I think I’m prepared to rule on this that this was not a stop. I mean the officer
pulled over at the same time they did. [Defendant] didn’t pull over as a result of the

                                              7
officer directing her to do so. He would have been justified in the doing that, but that’s
not what happened.
       “He contacted . . . defendant as she was exiting her vehicle. And he did not
suspect her of committing a crime, of violating the Vehicle Code. He had no suspicion of
her doing something wrong upon that initial contact.
       “And it was initially probably consensual. But once he asked for the ID or once
he had her ID and was running the records check, it was no longer consensual, pursuant
to Castaneda it was a detention. And that was prior to him smelling alcohol. So, there
was not a justification for that detention, albeit a short one.
       “So, I have to find that . . . portion of it was not justified. So, I’ll have to grant the
motion to suppress on that basis.”
                                                   II.
                             The Appellate Division’s Reversal
       The People timely appealed the court’s ruling to the appellate division of the
superior court. The appellate division issued a six-page opinion in which it reversed the
ruling. After interpreting the court’s findings as that defendant’s encounter was
consensual up until the time she gave Helfrich her driver’s license, it characterized the
issue as “whether the consensual encounter became a detention once Officer Helfrich had
possession of Defendant’s driver’s license based on the holding of Castaneda . . . .” It
reversed, relying heavily on People v. Leath (2013) 217 Cal.App.4th 344 (Leath), which
disagreed with Castaneda and held there was not necessarily a detention when a person
voluntarily relinquished identification to police.
       Defendant filed a request for certification of the case for transfer to this court
pursuant to California Rules of Court, rule 8.1005(a)(1), based on the split in appellate
authority between Castaneda and Leath. The appellate division granted her request. On
May 14, 2015, we ordered the case transferred pursuant to California Rules of Court,
rule 8.1008(a)(1)(A).




                                               8
                                       DISCUSSION
                                               I.
                                     Standard of Review
       When a defendant moves to suppress evidence, he or she “must set forth the
factual and legal bases for the motion . . . by making a prima facie showing that the
police acted without a warrant. The prosecution then has the burden of proving some
justification for the warrantless search or seizure, after which the defendant can respond
by pointing out any inadequacies in that justification.” (People v. Williams (1999) 20
Cal.4th 119, 136.)
       Where, as here, a case is certified for transfer to this court in order to settle
important and recurring questions of law, we have the same power to review any matter
and make orders as the superior court’s appellate division. (Cal. Const., art. VI, § 11;
Code Civ. Proc., § 911; see People v. Niebauer (1989) 214 Cal.App.3d 1278, 1284.)
Therefore, our review is as if the parties directly appealed from the trial court ruling on
defendant’s suppression motion. (People v. Niebauer, supra, 214 Cal.App.3d at p. 1284.)
       We consider the evidence in the light most favorable to the trial court’s
suppression motion ruling. (People v. Woods (1999) 21 Cal.4th 668, 673–674 (Woods).)
“As the finder of fact in a proceeding to suppress evidence (Pen. Code § 1538.5), the
superior court is vested with the power to judge the credibility of the witnesses, resolve
any conflicts in the testimony, weigh the evidence and draw factual inferences in
deciding whether a search is constitutionally unreasonable.” (Id. at p. 673.) “The trial
court also has the duty to decide whether, on the facts found, the search was unreasonable
within the meaning of the Constitution. Although that issue is a question of law, the trial
court’s conclusion on the point should not lightly be challenged by appeal . . . . Of
course, if such review is nevertheless sought, it becomes the ultimate responsibility of the
appellate court to measure the facts, as found by the trier, against the constitutional
standard of reasonableness.” (People v. Lawler (1973) 9 Cal.3d 156, 160, fn. omitted.)
       Accordingly, we consider the record in the light most favorable to defendant as
respondent “since ‘all factual conflicts must be resolved in the manner most favorable to

                                               9
the [superior] court’s disposition on the [suppression] motion.’ ” (Woods, supra,
21 Cal.4th at p. 673.) “But while we defer to the superior court’s express and implied
factual findings if they are supported by substantial evidence, we exercise our
independent judgment in determining the legality of a search on the facts so found.” (Id.
at pp. 673–674.)
                                             II.
                Law Governing Consensual Encounters and Detentions
       Under California Constitution, article I, section 28, subdivision (d), we apply
federal constitutional standards in deciding motions to suppress based on claims of illegal
search and seizure. (Woods, supra, 21 Cal.4th at p. 674.)
       “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.] . . . 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.) “An officer may approach a person in a public place and
ask if the person is willing to answer questions. If the person voluntarily answers, those
responses, and the officer’s observations, are admissible in a criminal prosecution.”
(People v. Brown (2015) 61 Cal.4th 968, 974, citing Florida v. Bostick (1991) 501 U.S.
429, 434 (Bostick) and Florida v. Royer (1983) 460 U.S. 491, 497 (plur. opn. of White,
J.) (Royer).) A detention, on the other hand, is a seizure, albeit a limited one, for which
reasonable suspicion is required. (See, e.g., People v. Souza (1994) 9 Cal.4th 224, 231.)
       A detention occurs when an officer intentionally applies physical restraint or
initiates a show of authority to which an objectively reasonable person innocent of
wrongdoing would feel compelled to submit, and to which such a person in fact submits.
(People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367, citing California v. Hodari D.
(1991) 499 U.S. 621, 626; Brower v. Inyo County (1989) 489 U.S. 593, 596–597; Bostick,

                                             10
supra, 501 U.S. 429, 434, 437–438; and INS v. Delgado (1984) 466 U.S. 210, 215, 218.)
“In situations involving a show of authority, a person is seized ‘if “in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave,” ’ or ‘ “otherwise terminate the encounter” ’ ([Brendlin v.
California, supra, 551 U.S. at p. 255]), and if the person actually submits to the show of
authority (id. at p. 254).” (People v. Brown, supra, 61 Cal.4th at p. 974.) The test for the
existence of a show of authority is an objective one and thus, “[n]either the officer’s
uncommunicated state of mind nor the subjective belief of the individual citizen is
relevant to the determination of whether a police contact is a detention.” (In re
Christopher B. (1990) 219 Cal.App.3d 455, 460.)
       “Examples of circumstances that might indicate a seizure, even where the person
did not attempt to leave, would be the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the officer’s request might
be compelled.” (Mendenhall, supra, 446 U.S. at p. 554; People v. Terrell (1999)
69 Cal.App.4th 1246, 1254 (Terrell).) Our case law indicates that other relevant factors
include the time and place of the encounter, whether the police indicated the defendant
was suspected of a crime, whether the police retained the defendant’s documents, and
whether the police exhibited other threatening behavior. (See, e.g., Wilson v. Superior
Court (1983) 34 Cal.3d 777, 790; People v. Garry (2007) 156 Cal.App.4th 1100, 1110–
1112; Castaneda, supra, 35 Cal.App.4th at p. 1227; People v. Spicer (1984)
157 Cal.App.3d 213, 218–220.)
       Questions by an officer of a sufficiently accusatory nature may “be cause to view
an encounter as a nonconsensual detention.” (People v. Lopez (1989) 212
Cal.App.3d 289, 292 (Lopez).) The same is true for commands or directions issued in the
course of an encounter. (People v. Aldridge (1984) 35 Cal.3d 473, 476–477 [officer’s
order that four individuals put down their packages and stand next to the patrol car
constituted a detention]; Barber v. Superior Court (1973) 30 Cal.App.3d 326, 330


                                             11
[officer detained a man by telling him to wait in his car while warrant checks were being
run].)
         The United States Supreme Court has made clear that, in determining whether an
encounter is consensual or constitutes a detention, a court should consider the totality of
the circumstances rather than adopt any per se rules about particular facts. (Bostick,
supra, 501 U.S. 429.) A court should consider all the circumstances surrounding the
encounter to decide whether an objectively reasonable person, who is innocent of
wrongdoing, would have believed he or she was free to go. (Mendenhall, supra,
446 U.S. at p. 554; Bostick, supra, 501 U.S. at pp. 437–438.) “Moreover, what
constitutes a restraint on liberty prompting a person to conclude that he is not free to
‘leave’ will vary, not only with the particular police conduct at issue, but also with the
setting in which the conduct occurs.” (Michigan v. Chesternut (1988) 486 U.S. 567,
573.) The Supreme Court has emphasized that “for the most part per se rules are
inappropriate in the Fourth Amendment context. The proper inquiry necessitates a
consideration of ‘all of the circumstances surrounding the encounter.’ ” (United States v.
Drayton (2002) 536 U.S. 194, 201.)
         In short, there is “no ‘bright-line’ distinction between a consensual encounter and
a detention . . . . ‘The test is necessarily imprecise, because it is designed to assess the
coercive effect of police conduct, taken as a whole, rather than to focus on particular
details of that conduct in isolation.’ ” (People v. Verin (1990) 220 Cal.App.3d 551, 556,
citing Michigan v. Chesternut, supra, 486 U.S. at p. 573.) There is not “a litmus-paper
test for distinguishing a consensual encounter from a seizure,” but, rather “[t]here will be
endless variations in the facts and circumstances, so much variation that it is unlikely that
the courts can reduce to a sentence or a paragraph a rule that will provide unarguable
answers to the question whether there has been an unreasonable search or seizure in
violation of the Fourth Amendment.” (Royer, supra, 460 U.S. at pp. 506-507.)




                                              12
                                             III.
          When an Officer Takes a Person’s Voluntarily Offered Identification
       The United States Supreme Court has made clear that “[i]n the ordinary course a
police officer is free to ask a person for identification without implicating the Fourth
Amendment.” (Hiibel v. Sixth Judicial Dist. Ct. (2004) 542 U.S. 177, 185.) Similarly,
“[a]sking for and examining . . . [one’s] driver’s license [is] no doubt permissible.”
(Royer, supra, 460 U.S. at p. 501; see also Gonzales, supra, 164 Cal.App.3d at p. 1197
[officer “abridged no constitutional tenet by asking Gonzales for his driver’s license and
identification”].)
       However, as the appellate division of the superior court noted, there has been
some confusion regarding whether an officer’s taking of a voluntarily offered
identification, such as a driver’s license, transforms a consensual encounter into a
detention.
       On the one hand, in Castaneda, supra, 35 Cal.App.4th 1222, the case relied on by
the trial court to grant defendant’s suppression motion, the appellate court concluded that
an officer’s taking of a person’s identification card itself created a detention. A police
officer contacted Castaneda as he sat in the passenger seat of an illegally parked car,
requested identification from him and asked him who owned the car. (Id. at pp. 1225–
1226.) Castaneda handed the officer his identification card and said a friend who lived in
a nearby apartment owned the car, although he did not know more about the friend’s
whereabouts. (Id. at p. 1226.) The officer radioed for information about the car’s
registration and about Castaneda while another officer filled out a parking citation for the
car. (Ibid.) The officers learned there was an outstanding warrant for Castaneda’s arrest,
arrested him and found marijuana and cocaine in his pockets during a personal search
incident to the arrest. (Ibid.)
       The magistrate rejected Castaneda’s argument that he was unreasonably detained
during the warrant check. (Castaneda, supra, 35 Cal.App.4th at p. 1226.) The appellate
court concluded that Castaneda was detained prior to the officers learning about his
outstanding arrest warrant because, “[a]lthough [he] was not restrained by the officer

                                             13
asking for identification, once [he] complied with his request and submitted his
identification card to the officers, a reasonable person would not have felt free to leave.
And once the officers began writing the parking ticket, no one would have tried to walk
away from them.” (Id. at p. 1227.)5
       The trial court here characterized Castaneda as indicating that an officer’s taking
of a voluntarily offered identification card was a “definitive factor” in establishing that a
detention had occurred. To be fair, Castaneda does not use such terminology, and its
ultimate conclusion that a detention occurred relied also on the officer’s writing of a
parking citation. To the extent it might be interpreted as turning solely on the taking of
the identification, such an approach amounts to a “litmus-paper test” approach that
conflicts with the “totality of the circumstances” paradigm that the United States
Supreme Court has instructed courts to apply in such cases. (See Bostick, supra, 501
U.S. 429.)
       The impropriety of such a “litmus-paper test” approach is made clear by cases
cited by the People that have considered whether or not an officer’s taking of a
voluntarily offered identification card constituted a detention, all three of which have
concluded that it did not. The most relevant of these is Leath, supra, 217 Cal.App.4th
344, on which the appellate division relied heavily to reverse the trial court’s grant of
defendant’s suppression motion. In Leath, two police officers investigating a robbery
spotted a vehicle near the scene of the crime matching a description of the robbers’
vehicle. (Id. at p. 348.) The officers approached Leath and one said, “ ‘Hey, sir, you left
your rear door open.’ ” (Ibid.) Leath responded, “ ‘Oh, oh, shit, I did,’ ” and walked
back toward the car. (Ibid.) In response to further questions, he said it was his car and
that he was near his friend or cousin’s house. (Ibid.) An officer asked Leath his name
and if he had any identification, whereupon Leath handed the officer his identification
card. (Ibid.) The officers ran defendant’s name through their database and discovered

       5
         Nonetheless, the appellate court concluded that the officers had reasonable
suspicion that justified Castaneda’s detention. (Castaneda, supra, 35 Cal.App.4th at
pp. 1227–1228.)

                                             14
outstanding traffic warrants, at which point they arrested him. (Ibid.) The trial court
subsequently denied Leath’s suppression motion, and he was convicted of two counts of
second degree robbery. (Id. at pp. 349–350.)
       The Leath court reviewed prior cases that addressed the issue and expressly
disagreed with Castaneda. (Leath, supra, 217 Cal.App.4th at pp. 351–354.) It concluded
that Leath’s voluntary turning over of his identification to police did not convert his
encounter with them into a detention because he was “ ‘free at this point to request that
his identification be returned and to leave the scene.’ ” (Id. at 353.) The court reasoned
that “[t]he right to ask an individual for identification in the absence of probable cause is
meaningless if the officer needs probable cause to accept the individual’s proof of
identification.” (Ibid.) It opined that “the Castaneda holding essentially ‘eviscerate[s]
the rule that a law enforcement officer may ask an individual for identification without
having any suspicion that he or she has committed a crime, because as soon as the
individual complies with the constitutional request, an unconstitutional seizure will have
occurred.’ ” (Ibid.) The Leath court concluded that, given that the officers in the case
did not accuse Leath of any illegal activity when they first addressed him, demand
identification, or threaten Leath with any physical force, and given that there was no
evidence that they would not have returned the defendant’s identification if he had asked
for its return, the record supported the trial court’s conclusion that a reasonable person in
defendant’s position would have felt free to leave prior to the officers’ discovery of the
defendant’s outstanding traffic warrants. (Ibid.)
       The appellate court reached a similar result in Terrell, supra, 69
Cal.App.4th 1246. Two police officers observed Terrell and two other men seating on a
park bench, and one of the other men appeared to be under the influence of a controlled
substance. (Id. at p. 1251.) One of the officers spoke briefly to Terrell and asked
whether he had any identification. Terrell produced a California driver’s license and the
officers discovered he had an outstanding warrant. They arrested him and, incident to the
arrest, searched him and discovered a hypodermic syringe containing heroin. (Ibid.) The


                                             15
trial court denied Terrell’s suppression motion, and he was later convicted of possession
of a controlled substance. (Id. at p. 1250.)
       On appeal, Terrell argued that he had been unlawfully detained prior to his arrest.
The court disagreed: “The totality of circumstances surrounding [Terrell’s] arrest reveals
that [his] initial encounter with the police was consensual, including [his] spontaneous
and voluntary action in handing [the officer] his driver’s license. At no time did he ask
the officer for his driver’s license back. During the entire encounter, which lasted about
three minutes, neither [officer] nor his partner, by words or conduct, indicated that
[Terrell] was not free to leave. No reasonable inference therefore could be drawn that the
encounter was a detention rather than a consensual encounter.” (Terrell, supra,
69 Cal.App.4th at p. 1254.)
       Finally, in Lopez, supra, 212 Cal.App.3d 289, a veteran police officer and a recruit
were patrolling a parking lot for narcotics traffickers when they saw Lopez, whom the
officer thought he recognized from a previous encounter, sitting on the hood of a car. As
he walked by Lopez, the officer asked him if it was his car and Lopez said it was not. In
the course of further conversation, Lopez said he was waiting for his friends to play pool
and the officer asked why he had no pool stick, to which Lopez had no reply. The officer
then asked if Lopez had identification. Lopez reached into his pocket and handed his
wallet to the recruit; when the wallet was opened, evidence of cocaine “ ‘pop[ped] up’ ”
and the officers arrested him. (Id. at p. 291.)
       The trial court concluded that the police were required to have a reasonable
suspicion in order to ask questions or request identification. The appellate court
disagreed and reversed. It focused on two concerning aspects of the encounter: the
officer’s initial questions of Lopez and his request for identification. The court dismissed
its concern about the latter quickly based on United States Supreme Court case law.
(Lopez, supra, 212 Cal.App.3d at p. 292.) It acknowledged, however, that, “questions of
a sufficiently accusatory nature may by themselves be cause to view an encounter as a
nonconsensual detention.” (Ibid.) The court’s discussion indicated that it considered the
question close in this case. It noted, “Lopez was not engaged in any apparently unlawful

                                               16
conduct, yet the officers stood on either side of him and launched into a short, albeit
somewhat accusatory, interrogation.” (Id. at p. 293.) Nonetheless, the court concluded
that the particular questions asked did not create a detention because “the questions were
brief, flip, and, most importantly, did not concern criminal activity.” (Ibid.)
       The People cite another case that is relevant to the present circumstances, People
v. Bouser (1994) 26 Cal.App.4th 1280. The defendant, Bouser, argued in a suppression
motion that he was unlawfully detained when a police officer asked for his identification
information and conducted a warrant check before arresting Bouser. The appellate court
affirmed the trial court’s rejection of the motion. It concluded that it was “reasonable to
presume the check alerted Bouser that he was somehow being investigated” and that the
officer’s questions to Bouser would cause a reasonable person to believe they were the
subject of “general suspicion.” (Id. at p. 1287.) However, “neither the questioning nor
the warrant check related to specific and identifiable criminal activity” and the officer,
among other things, “did not order Bouser to do anything or turn over anything to him to
hold while the brief check was completed.” (Ibid.)
       Lopez does not discuss the “totality of the circumstances” paradigm because it was
decided before the Supreme Court made clear the necessity of this paradigm’s application
in Bostick, supra, 501 U.S. 429. However, Leath, Terrell and Bouser make clear their
conclusions are based on a review of all the circumstances pursuant to Bostick. (Leath,
supra, 217 Cal.App.4th at p. 353 [“a voluntary relinquishment of one’s identification card
does not constitute a seizure as long as the encounter is consensual under the totality of
the circumstances”]; (Terrell, supra, 69 Cal.App.4th at p. 1254 [stating that “[t]he totality
of circumstances surrounding [Terrell’s] arrest reveals that [his] initial encounter with the
police was consensual, including [his] spontaneous and voluntary action in handing [the
officer] his driver’s license,” that Terrell never asked for his license back, and that neither
officer nor his partner, “by words or conduct, indicated that [Terrell] was not free to
leave”]; Bouser, supra, 26 Cal.App.4th at p. 1287 [refusing to adopt Bouser’s proposed
“bright line rule” and considering the “warrant check a single circumstance that must be
viewed in light of the other facts presented”].)

                                              17
       Taken together, these cases establish that an officer’s taking of a voluntarily
offered identification card, while it may be considered as a factor in evaluating whether a
detention has occurred pursuant to a review of all the circumstances involved in an
encounter, is not alone definitive in resolving that question. To the extent the trial court
may have concluded otherwise, it was in error. This, however, does not satisfy our
obligation to determine whether, under the totality of the circumstances, an unlawful
detention occurred here. We turn now to this question.
                                             IV.
      The Totality of the Circumstances Indicate Linn Was Unlawfully Detained.
       The sole question here is whether the totality of the circumstances supports the
trial court’s determination that Helfrich unlawfully detained defendant prior to smelling
alcohol on her; that is, was the trial court correct in concluding that under the totality of
the circumstances here, an objectively reasonable person would not have felt free to
terminate the encounter prior to that time?6 We agree with and thus affirm the trial
court’s holding that Helfrich unlawfully detained defendant.
       Pursuant to Bostick and our deferential standard of review of the record in favor of
the judgment (Woods, supra, 21 Cal.4th at pp. 673-674), we must consider all of the
circumstances involved in this encounter. The analyses, although not the conclusions,
contained in the cases that we have just discussed—Leath, Terrell, Lopez and Bouser—
refer to the absence of other factors that could contribute to a determination that a
detention occurred. Several of these factors are present here. These include that

       6
         We reject the People’s contention, as an alternative ground in favor of rejecting
defendant’s suppression motion, that Officer Helfrich was justified in detaining defendant
because he had a reasonable suspicion that there was a violation of Vehicle Code
section 23111 and, therefore, properly stopped defendant’s vehicle in order to investigate
the passenger’s conduct. A violation of section 23111 may have justified a detention of
the passenger, but it has no relevance to Helfrich’s encounter with defendant because he
contacted her after she had parked her car and gotten out of it. As the trial court
concluded, there is no evidence whatsoever that Helfrich stopped the vehicle and the
People offer none to cause us to question this finding. Their alternative argument is
meritless and need not be discussed further.

                                              18
Helfrich’s first statement to defendant, intended to explain why he was talking to her,
implicated her in the illegal activity of her passenger. (See Leath, supra, 217
Cal.App.4th at p. 353; Lopez, supra, 212 Cal.App.3d at p. 293; Bouser, supra, 26
Cal.App.4th at p. 1287 [all indicating that the questioning was not directed at the
defendant’s possible illegal activity].) Also, Helfrich “commanded” defendant, as the
trial court characterized it, to put out her cigarette and put down her soda can,7 thereby
indicating that she was not free to do as she pleased. (See Terrell, supra, 69 Cal.App.4th
at p. 1254; Bouser, supra, 26 Cal.App.4th at p. 1287 [emphasizing that the defendants
were not ordered to do anything].)8
       In addition, the undisputed evidence indicates that Officer Helfrich approached
defendant in full uniform by parking his marked police motorcycle within three feet of
her and standing even closer as she emerged from her car. He first said he was talking to

       7
          At oral argument, counsel for the People pointed out that defendant initially
testified that Helfrich “asked” her to put out her cigarette and put down her soda can.
However, defendant later answered affirmatively when asked if Helfrich “told” her to put
out her cigarette and Helfrich, although he could not recall what he told defendant, said it
was his practice to “tell” people to put out their cigarettes, providing substantial evidence
for the court’s “command” finding. Also, the trial court made its finding that Helfrich
“commanded” defendant to put out her cigarette prior to smelling alcohol, although
Helfrich did not recall whether or not he had done so. We do not disturb the trial court’s
determination of the credibility of Helfrich and defendant on this subject nor its
resolution of any conflicts in the evidence. (Woods, supra, 21 Cal.4th at p. 673.)
        Even if the trial court had found that Helfrich merely “asked” her to put out her
cigarette and put down her soda can, it has been found under similar circumstances that
an officer doing so does not negate the coercive nature of the request. (See United States
v. Beauchamp (6th Cir. 2011) 659 F.3d 560, 569 [concluding that asking someone for
identification or to exit his vehicle rather than telling the person was a “purely semantic”
distinction].)
       8
           Defendant also testified that Helfrich told her to stay where she was when she
tried to walk away, whereas Helfrich testified to the contrary. As we have discussed,
such a circumstance would go a long way towards establishing a detention occurred.
(People v. Aldridge, supra, 35 Cal.3d at pp. 476–477; Barber v. Superior Court, supra,
30 Cal.App.3d at p. 330.) The trial court’s statement of its decision made no reference to
it, and it is unclear whether or how the trial court resolved this credibility-based factual
question. Therefore, we have not considered this evidence in our analysis.

                                             19
her because her passenger had flicked ashes out the car window and asked for her
driver’s license. Although Helfrich did not block defendant’s path, sound any sirens or
shine any lights, his physical closeness to her as she stood between him and her vehicle,
and his pointed statement about the conduct of the passenger of a car defendant had just
completed driving, followed by his immediate request for her identification, would have
placed an objectively reasonable person on alert that Helfrich might be investigating her
specifically for a possible violation of the law and, therefore, created doubt as to whether
she was free to leave. Helfrich’s statement to defendant implicated her responsibility as
driver and could be understood as an accusation that she had violated the law (see Lopez,
supra, 212 Cal.App.3d at p. 292 [“questions of a sufficiently accusatory nature may by
themselves be cause to view an encounter as a nonconsensual detention”]). It is greater
than any of the initial inquiries discussed in Leath, Terrell, Lopez and Bouser, none of
which involved statements by an officer indicating suspicion that the defendant
specifically engaged in illegal activity.
       Moreover, Helfrich added to such suspicions of an objectively reasonable person
by immediately following this statement with a request for defendant’s driver’s license,
taking the license and holding it as he initiated a record check of defendant, all without
further explanation. Defendant had just parked her Expedition. It is reasonable to
presume that she would need her driver’s license to drive, as well as for other purposes.
This suggests Helfrich’s decision to hold her driver’s license had at least some coercive
effect, as defendant’s walking away without it would have limited her ability to function.
(See United States v. Chavez-Villarreal (5th Cir. 1993) 3 F.3d 124, 128 [noting the
coercive nature of a border agent’s retention of Chavez-Villarreal’s alien registration
card, which “was vital to Chavez-Villarreal’s legal presence in this country; without it,
his disposition, if indeed ability, to decline [the agent’s request to search his vehicle]
expectedly was significantly impaired”]; see also United States v. De La Rosa (11th
Cir. 1991) 922 F.2d 675, 683-684 (Clark, J., dissenting) [noting that “the most valuable
piece of personal identification possessed by most citizens is their driver’s license” and


                                              20
that “those who have been unfortunate enough to lose their driver’s licenses know how
completely disabled one is from participating in many of the incidents of everyday life”].)
       Also, around the time he asked defendant for her driver’s license, Helfrich also
directed defendant to put out her cigarette and to put down her soda can, directives that
would heighten an objectively reasonable person’s suspicion that she was under police
investigation and not free to leave. (See People v. Aldridge, supra, 35 Cal.3d at pp. 476–
477; Barber v. Superior Court, supra, 30 Cal.App.3d at p. 330.)
       Finally, as indicated in the segment of the video recording from Helfrich’s body
camera, after these actions, Helfrich began questioning the passenger about his flicking
ashes out the window and about his personal information while filling out a form, and
then called that information in via his radio. This indicates two things. First, it appears
from the testimony and this video that Helfrich did not focus on the passenger until after
he stopped and spoke to defendant, and initiated a record check of her. This would
suggest to an objectively reasonable person that she was a principal focus of the inquiry.
Second, an objectively reasonable person who was the driver of the car would reasonably
assume that Helfrich might be filling out a citation for a violation of the law by the
passenger—and that he would also do so for her, given his conduct up to that point.
       The appellate division appropriately noted that Helfrich did not raise his voice,
and that on the video he and defendant were cordial, friendly and smiling. We agree with
this assessment, but it does not overcome the effect of Helfrich’s overall approach, which
the trial court concluded would cause an objectively reasonable person to believe she was
under investigation for a possible violation of the traffic laws as the driver of a vehicle in
which a passenger flicked ashes out the vehicle’s window. There was substantial
evidence supporting that determination.
       Moreover, we emphasize that the circumstances discussed in Leath, the case
primarily relied upon by the appellate division, and the other cases cited by the People are
different from those in the present case in one important respect. That is, the trial court
here found that Helfrich commanded defendant to put out her cigarette, and defendant’s
undisputed testimony was that he also told her to put down her soda can, in the course of

                                              21
his request for her identification, his taking and retention of it, and his initiation of a
record check without further explanation. Whether characterized as requests or
commands, these directives represent a significant exercise of coercive authority. No
such directives were given by the officers in Leath or the other cases discussed by the
People.
       Further, the appellate division relied on Leath in part because Leath favorably
quoted another court’s conclusion that Castaneda’s holding “essentially ‘eviscerate[s] the
rule that a law enforcement officer may ask an individual for identification without
having any suspicion that he or she has committed a crime, because as soon as the
individual complies with the constitutional request, an unconstitutional seizure will have
occurred.’ ” (Leath, supra, 217 Cal.App.4th at p. 353.) The taking of defendant’s
driver’s license would be less significant if Helfrich had merely taken defendant’s
driver’s license, examined it, and promptly returned it to her. As we have indicated,
“asking for and examining . . . [one’s] driver’s license [is] no doubt permissible.” (Royer,
supra, 460 U.S. at p. 501.)
       However, that is not all that occurred here. After suggesting that defendant might
have been responsible for a traffic violation, Helfrich took and then held on to
defendant’s driver’s license as he conducted a record check of her that he did not
explain.9 He then began to question her passenger and write down his answers in a
manner that suggested further police investigation. Indeed, a rule that the courts could
not consider the fact that an officer took and held onto an identification card while
conducting a record check would be the same kind of bright-line test as the one
articulated in Castaneda, which we have rejected for similar reasons. We consider all the
facts; Bostick’s totality of the circumstances rule requires that we do so. We cannot
conclude that an objectively reasonable person in the present circumstances would feel



       9
        These facts also distinguish the present case from Lopez, in which illegal drugs
popped out of a wallet when it was first opened by an officer. (Lopez, supra, 212
Cal.App.3d at p. 291.)

                                               22
free either to walk away without her driver’s license or to interrupt Helfrich’s
investigation to ask for her driver’s license to be returned so that she could leave.
       We are not alone in our conclusions. We have in our own research found
numerous well-reasoned cases in other jurisdictions that, like Leath and the others we
have discussed, engage in a “totality of the circumstances” analysis or its equivalent, but
nonetheless conclude that an officer’s taking of a person’s identification card and
retention of it while running a record check or engaging in further questioning weighs in
favor of a finding of an unlawful detention. (See Horne v. State (Fla.Dist.Ct.App. 2013)
113 So.3d 158, 161 [“the officer’s asking to search Horne without returning her license
outweighs the fact that she initially voluntarily spoke with the officer and consented to
the warrants check”]; Barna v. State (Fla.Dist.Ct.App. 1994) 636 So.2d 571, 572 [police
engaged in an unlawful investigatory stop when they told the defendant they were
“investigating” because he was in a parking lot known for criminal activity and retained
his identification card while running a computer check of him]); Commonwealth v. Oscar
Lyles (Mass. 2009) 905 N.E.2d 1106, 1110 [when an officer not only reviewed a
defendant’s voluntarily given identification card but retained it “to run a check for
outstanding warrants, notably without the defendant’s consent . . . [the officer] was
implicitly commanding the defendant to remain on the scene” and “a reasonable person
would not believe that he could terminate the encounter and leave”]; State v. Daniel
(Tenn. 2000) 12 S.W.3d 420, 427–428 [an unlawful seizure occurred when, after
requesting and examining a defendant’s identification card, the police officer retained it
and conducted a warrants check]; see also Royer, supra, 446 U.S. at p. 501 [“when the
officers identified themselves as narcotics agents, told Royer that he was suspected of
transporting narcotics, and asked him to accompany them to the police room, while
retaining his ticket and driver’s license and without indicating in any way that he was free
to depart, Royer was effectively seized”]; United States v. Jordan (D.C. Cir. 1992) 958
F.2d 1085, 1088 [“what began as a consensual encounter . . . graduated into a seizure
when the officer asked Jordan’s consent to a search of his bag, after he had taken and still
retained Jordan's driver’s license”]); United States v. Glover (2d Cir. 1992) 957 F.2d

                                             23
1004, 1009 [a seizure occurred when a government agent asked the defendant to go from
a public area to a security office for further questioning without returning his
identification card or indicating he was free to leave].)10
       In short, an objectively reasonable person would not have felt free to end the
encounter with Helfrich under the totality of the circumstances. We agree with the trial
court’s conclusion that an unlawful detention occurred.
                                      DISPOSITION
       The appellate division’s decision is reversed and the trial court’s order granting
defendant’s motion is affirmed.




       10
           These and similar cases are particularly noteworthy in light of recent empirical
research suggesting that a significant number of people do not feel free to leave when
approached by police, and even less so when police assert even mild forms of authority.
(See Note, Casual or Coercive? Retention of Identification in Police-Citizen Encounters
(2013) 113 Colum. L.Rev. 1283, 1312-1313 [noting studies such as one in which half the
respondents indicated that they would feel either not free to leave or less than somewhat
free to leave in a mere conversation with police on a sidewalk and concluding, “[t]hus, it
appears that any interaction with a police officer, even at the lowest level of
intrusiveness, makes most citizens feel that they are not free to leave”]; Smith et al.,
Testing Judicial Assumptions of the “Consensual” Encounter: An Experimental Study
(2013) 14 Fl. Coastal L.Rev. 285, 319-320 [noting that while nearly three-quarters of the
sample used in the study perceived the encounters with sworn, armed security as
consensual, forty-five percent also believed they had no right to walk away or ignore the
security officers’ requests]; see also Ross, Can Social Science Defeat a Legal Fiction?
Challenging Unlawful Stops Under the Fourth Amendment (2012) 18 Wash. & Lee J.
Civil Rts. & Soc. Just. 315, 331-339 [discussing empirical studies].)

                                              24
                   STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




              25
People v. Linn (A145052)

Trial Court: Napa County Superior Court

Trial Judge: Hon. Rodney G. Stone

Counsel:

Gary Lieberstein, District Attorney, Pooja Kumar and Bradley Morrow, Deputy District
Attorneys, for Plaintiff and Appellant.

Ronald H. Abernethy, Public Defender, Ji-Hyun Cho, Deputy Public Defender, for
Defendant and Respondent.




                                          26
