Filed: 12/12/13
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                        H037910
                                                  (Santa Cruz County
        Plaintiff and Respondent,                  Super. Ct. No. F20171)

        v.

MARCUS TAYLOR BATES,

        Defendant and Appellant.



        In this appeal we conclude that the unlawfulness of a suspicionless vehicle
detention is not retroactively cured when one of the passengers turns out to be a
probationer with a search condition.
        Defendant Marcus Taylor Bates pleaded no contest to felony grand theft from a
person (Penal Code, § 487, subd. (c)) after he unsuccessfully moved to suppress evidence
resulting from a traffic stop.1 For the reasons stated herein, we will reverse the Superior
Court’s denial of defendant’s motion.
              I.      FACTUAL AND PROCEDURAL BACKGROUND
        The following factual background is derived from the testimony of Deputies
Russell Skelton and Robert Gidding at the hearing on defendant’s suppression motion.
On December 13, 2010, at approximately 1:15 p.m., deputy sheriffs responded to a
disturbance involving two males and one female near the corner of Soquel Drive and 41st
Avenue in Soquel. Deputies Skelton and Gidding, as well as other deputies, arrived at

        1
         Defendant also admitted a prior strike conviction. (Pen. Code, § 667, subd.
(a)(1).) Pursuant to a plea agreement, he was sentenced to a 32-month prison term (the
lower term doubled for the prior strike).
the same time and interviewed the three people present. One of the individuals, Kyle
Shelton, reported that his cellular phone had been taken from him. The theft occurred
near the corner of Soquel Drive and Robertson Road, approximately 300 yards from the
41st Avenue location.
       Shelton described the assailant to Deputy Skelton as a black male, just older than
high school age, wearing a navy blue shirt, navy blue pants, and a navy blue jacket.
Shelton also told the deputy he had seen the assailant around the area before, and that the
assailant’s name might be “Marcus.” The other male present when the deputies arrived
was Shelton’s uncle, Michael Lesui, who recited Shelton’s statements that the perpetrator
threatened to shoot Shelton if he did not give up his phone and that the perpetrator drove
a gold van.
       Deputy Fenster, who also responded to the disturbance call, learned that defendant
was a felony probationer who matched the general description of the assailant and lived
in a nearby apartment complex. After learning defendant’s probation terms included a
warrantless search condition, Deputy Fenster directed Deputy Gidding to drive to the
apartment complex where defendant lived and to stop the gold van used by defendant’s
family if he saw it leave the complex.
       At approximately 3:00 p.m., deputy sheriffs, including Deputies Fenster and
Skelton, arrived at the apartment complex to search defendant’s residence. Deputy
Skelton testified that as he was walking toward the complex, he saw a black male adult
between 5 feet 9 inches and 6 feet tall wearing a blue sweatshirt walking beside the fence
separating the apartment complex from an adjacent mobile home park. After Deputy
Skelton lost sight of the individual, he informed the other deputies over the radio that a
person matching the assailant’s general description was walking west toward the mobile
home park. Based on that information and a statement from another deputy that the
person walking could be Marcus Bates, Deputy Gidding drove part way through the
mobile home park and stopped his patrol car on the side of the park’s single access road.
                                             2
       Within two minutes of Deputy Skelton’s radio broadcast, Deputy Gidding noticed
a tan car driving toward the park’s exit. Deputy Gidding got out of his patrol car and
signaled the car to stop.
       Deputy Gidding’s method of stopping the tan car is unclear from the record. The
trial court indicated Deputy Gidding started to raise his hand when testifying in court
about stopping the tan car, suggesting he made the same gesture when he pulled the car
over. However, the trial court did not specifically make a finding on this point.
According to Deputy Gidding’s testimony, the sole observation he made about the tan car
was that there were people in it. Though the testimony is vague, it appears that when he
stopped the car he could see a white female driver, a black male in the front passenger
seat, and a third passenger in the back seat. Deputy Gidding testified that he had not seen
a photograph of defendant and did not know what defendant looked like, beyond the
general information given by the victim.
       When Deputy Gidding approached the tan car, he noticed the passenger in the
back seat was also a black male. After he told the occupants he was investigating a crime
and asked them for identification, the passenger in the back seat identified himself as
“Marcus Bates.” He was wearing a blue zip-up hooded jacket, a blue shirt, and blue
jeans. Deputy Gidding asked him to get out of the car and placed him in handcuffs.
       Defendant moved to suppress all evidence obtained as a result of Deputy
Gidding’s stop of the tan car, arguing the stop violated the Fourth Amendment. The trial
court denied the motion, finding no show of authority by the deputy and “[i]t may well be
that [the driver of the tan car] stopped completely voluntarily.” Based on defendant’s
probation search condition, the trial court determined the deputies were entitled to detain
and search defendant when he identified himself. Alternatively, the court found that even
if the stop was not voluntary, it was nonetheless a lawful investigatory detention.




                                             3
                                II.       DISCUSSION
       We divide our discussion into two parts: (1) whether Deputy Gidding’s stop of the
tan car violated the Fourth Amendment; and, if so, (2) whether defendant’s probation
search condition served to attenuate the taint of a Fourth Amendment violation.
A.     CONSTITUTIONALITY OF THE INVESTIGATORY STOP

       Rulings on suppression motions present mixed questions of law and fact. (People
v. Hernandez (2008) 45 Cal.4th 295, 298-299.) We review the trial court’s factual
determinations for substantial evidence. However, we review de novo the trial court’s
application of the law to the facts. (Id. at p. 299.) The constitutionality of the
investigatory stop here depends on whether the tan car stopped in response to a show of
authority by Deputy Gidding and, if so, whether the investigatory stop was a lawful
detention.
       1.     Deputy Gidding Stopped the Tan Car Under a Show of Authority

       Not all interactions between law enforcement and members of the public rise to
the level of “seizures” implicating the Fourth Amendment. (People v. Zamudio (2008)
43 Cal.4th 327, 341.) For a seizure to occur, an officer must intentionally restrain an
individual’s freedom of movement either physically or through a show of authority.
(Ibid., citing Brendlin v. California (2007) 551 U.S. 249, 254.) A seizure through a show
of authority occurs when a reasonable person would not believe he or she is free to leave
or to decline an officer’s request. (Zamudio, supra, at p. 341.) The reasonableness of an
officer’s conduct must be viewed in light of all the circumstances surrounding the
incident. (Ibid., citing Brendlin v. California, supra, 551 U.S. at p. 255.)
       In making its factual findings, the trial court described that Deputy Gidding
“started to put his hand up in court” when testifying about stopping the tan car,
suggesting an inference that the deputy may have raised his hand when he actually
stopped the car. However, the trial court determined that such a gesture was not a show

                                              4
of authority and that no other action by Deputy Gidding constituted a show of authority.
On appeal, defendant argues the tan car stopped in response to the deputy’s show of
authority. We agree.
       When Deputy Gidding stopped the car, he was in uniform and standing near a
patrol car. Although not blocking the road, the patrol car was stopped along the route of
the tan car’s only exit from the park. Further, Deputy Gidding himself described more
than once at the suppression hearing, “I stopped the car.”
       Deferring to the trial court’s factual findings, we apply them in our analysis of the
stop at issue here and conclude that a reasonable person would not have believed he or
she was free to leave or not comply with the deputy’s directives. A reasonable driver
would not feel free to ignore a uniformed officer standing next to a patrol car, possibly
gesturing with a raised hand, and would feel compelled to stop. While not dispositive,
Deputy Gidding’s repeated statement that he stopped the car shows he intended to stop
the car and suggests that whatever gesture he may have made with his hand would lead a
reasonable person under all circumstances to infer a show of authority. We conclude
Deputy Gidding seized the tan car and its occupants for purposes of the Fourth
Amendment, and we must therefore determine whether the seizure was lawful.
       2.     The Detention of the Tan Car was Unlawful

       The Fourth Amendment and the California Constitution protect individuals against
unreasonable searches and seizures. (Hernandez, supra, 45 Cal.4th at p. 299; People v.
Camacho (2000) 23 Cal.4th 824, 830 [“since voter approval of Proposition 8 in June
1982, state and federal claims relating to exclusion of evidence on grounds of
unreasonable search and seizure are measured by the same standard”].) Detention of the
tan car would be reasonable under the Fourth Amendment if there were “specific
articulable facts that, considered in light of the totality of the circumstances, provide[d]
some objective manifestation that the person [or vehicle] detained may be involved in


                                              5
criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) The requirement of
particularized suspicion does not allow officers to detain individuals or vehicles based on
“mere hunches” or to stop vehicles solely to check the validity of a driver’s license or car
registration. (Hernandez, supra, 45 Cal.4th at p. 299.)
       When he stopped the tan car shortly after 3:00 p.m., Deputy Gidding knew of the
reported theft that had occurred some two hours earlier. He was aware that the suspect
was a black male, slightly older than high school age, wearing a blue shirt, blue pants,
and a blue jacket. Deputy Gidding also knew the suspect could be a man named Marcus
Bates, a probationer living at a nearby apartment complex whose family drove a gold van
which the deputy had been instructed to watch for. Deputy Gidding had heard Deputy
Skelton’s report of someone matching the suspect’s general description walking away
from defendant’s apartment complex and toward an adjacent mobile home park.
       Based on this information, Deputy Gidding immediately went to the mobile home
park and stopped a tan car. When asked directly by the prosecutor at the suppression
hearing why he stopped that car, the sole reason he gave was that “there were people in
the car.” Deputy Gidding never testified that he stopped the car because any of its
occupants matched the suspect’s description. He did not state that anything about the tan
car or the way it was being driven gave rise to any suspicion of criminal activity. Nor did
he testify that he knew a probationer named Marcus Bates was in the car, nor even that he
knew what that probationer looked like.
       From these facts, and considering them in light of the totality of the circumstances,
we conclude the deputy had no reasonably articulable suspicion that either the occupants
of the tan car or the car itself may have been involved in criminal activity. Instead, it
appears Deputy Gidding made the stop based solely on the possibility that the suspect
might be riding in the vehicle. It is logical to assume that a suspect might get into a
vehicle to leave the location of a crime and its investigation. Without more, however,
that assumption does not rise to the particularized suspicion necessary to detain the
                                              6
vehicle and its occupants. Our conclusion is consistent with cases arising from detentions
based solely on generalized suspicion. In People v. Hernandez, supra, 45 Cal.4th 295,
the Supreme Court rejected the stop of a vehicle with a temporary operating permit
because the officer had only a generalized suspicion that temporary permits are often
invalid. (Id. at p. 300-301.)
       Most of the authorities relied on by the People are distinguishable because they
involved detentions where officers specifically recognized an individual or a vehicle as
related to a crime. (United States v. Hensley (1985) 469 U.S. 221, 232 [traffic stop and
detention lawful where officers recognized the individual from a wanted poster for a
previous felony]; People v. Williams (1995) 33 Cal.App.4th 467, 476-477 [traffic stop
and detention lawful where vehicle’s license plate number was associated with
outstanding traffic warrant]; People v. Lazanis (1989) 209 Cal.App.3d 49, 54 [traffic stop
of white car with three passengers lawful where it occurred immediately after another
officer reported a white car with three passengers had just left location of suspected
burglary]; In re William J. (1985) 171 Cal.App.3d 72, 76-77 [traffic stop and detention
lawful where police recognized a passenger and believed there was an outstanding arrest
warrant for that passenger]; People v. Fields (1984) 159 Cal.App.3d 555, 564 [detention
lawful where defendant matched suspect description containing unique distinguishing
features including sex, height, race, age, and attire]; People v. McCluskey (1981) 125
Cal.App.3d 220, 226 [traffic stop and detention lawful where police observed passenger
matching suspect’s description before stopping the vehicle]; United States v. Pagel (7th
Cir. 1988) 854 F.2d 267, 271 [detention of vehicle lawful where it was known to be
property of parolee subject to search condition].)
       In contrast, Deputy Gidding did not testify that any characteristic of the tan car or
its passengers created a particularized suspicion they were associated with a crime. To
the extent the People argue Deputy Gidding’s description of the vehicle’s front passenger
as a black male created sufficient suspicion, the race of an occupant, without more, does
                                              7
not satisfy the detention standard. (People v. Bower (1979) 24 Cal.3d 638, 644 [race
alone cannot raise reasonable suspicion of criminal activity without additional identifying
characteristics].) Similarly, the People’s argument that defendant’s probation search
condition retroactively made the stop reasonable is without merit because Deputy
Gidding did not know defendant was in the vehicle when he made the stop. (See People
v. Robles (2000) 23 Cal.4th 789, 800 [advance knowledge of probation search condition
required to make search reasonable]; see also In re Marcellus L. (1991) 229 Cal.App.3d
134, 149-150.)
       Two other cases cited by the People merit greater attention, but are nonetheless
distinguishable because they involve circumstances not present here. In People v.
Conway (1994) 25 Cal.App.4th 385, an individual looked out his window just before 3:00
a.m. and saw two men, one “dark” and one white, leaving his garage with some of his
belongings. (Id. at p. 387.) While his wife called the police, the individual pursued the
two burglars and saw them driving away in a small Chevrolet. Meanwhile, a patrol car
responding to the dispatch of the burglary in progress saw a brown compact car leaving
the area of the burglary with two male occupants, one white and one black. Seeing no
other vehicles on the road at that hour, deputies stopped the brown compact car and
detained the occupants. An occupant of the brown compact car, who was convicted of
the residential burglary, challenged the detention on appeal, claiming the officer did not
have a reasonably articulable suspicion of criminal activity. The appellate court affirmed
the lawfulness of the traffic stop and detention. (Id. at pp. 387-389.)
       In finding a reasonably articulable suspicion of criminal activity, the Conway court
focused on three details not present in the case before us. First, the traffic stop in
Conway occurred less than two minutes after the officers received a dispatch of a
burglary in progress. (Conway, supra, 25 Cal.App.4th. at p. 390.) Deputy Gidding’s stop
of the tan car took place shortly after defendant was seen near the mobile home park, but
more than two hours after the theft occurred. Second, in Conway the deputy stopped the
                                              8
brown compact car as it was leaving the immediate area of the burglary. (Ibid.) The tan
car, on the other hand, was leaving a nearby residential complex rather than the location
of the reported crime. Third, the traffic stop in Conway happened in the middle of the
night when no other vehicles or individuals were present. (Ibid.) Deputy Gidding’s mid-
afternoon stop of the tan car is distinguishable because it is far more common for the
general public to be driving in the afternoon than in the middle of the night.
       The People also rely on People v. Souza, supra, 9 Cal.4th 224. In Souza, police in
a high crime area noticed the defendant standing in the dark late at night talking to
someone in a parked car. (Id. at p. 228.) When the police turned on a spotlight, the
defendant ran and was then apprehended. (Ibid.) In upholding the denial of his motion to
suppress evidence of narcotics discovered when the defendant was frisked, the court
found no Fourth Amendment violation because the detention occurred in a high crime
area, late at night, after the defendant exhibited suspicious behavior by standing next to a
car in the darkness and then running from police. (Id. at p. 242.) No such circumstances
are present in this case.
B.     DEFENDANT’S PROBATION SEARCH CONDITION

       Having determined the investigatory stop was unlawful, evidence obtained as a
result of the stop must be suppressed unless an intervening circumstance attenuated the
Fourth Amendment violation. To determine if evidence is admissible despite a defect in
the initial stop, we must decide “ ‘whether the chain of causation proceeding from the
unlawful conduct has become so attenuated or has been interrupted by some intervening
circumstance so as to remove the “taint” imposed upon that evidence by the original
illegality.’ ” (People v. Brendlin (2008) 45 Cal.4th 262, 269, quoting United States v.
Crews (1980) 445 U.S. 463, 471.) Three factors are used to determine whether the taint
of the illegal detention has been attenuated: (1) the temporal proximity of the Fourth
Amendment violation to the procurement of the challenged evidence; (2) the presence of


                                             9
intervening circumstances; and (3) the flagrancy and purposefulness of the official
misconduct. (Ibid., quoting People v. Boyer (2006) 38 Cal.4th 412, 448.) In People v.
Brendlin, police officers made an unlawful traffic stop of a car and, upon discovering that
a passenger had an outstanding arrest warrant, conducted a search incident to arrest and
found controlled substances. (Id. at pp. 265-266.) On remand from the United States
Supreme Court,2 the California Supreme Court held that the discovery of the arrest
warrant constituted an intervening circumstance that attenuated the taint of the unlawful
traffic stop. (People v. Brendlin, supra, at p. 271.)
       The People argue defendant’s probation search condition attenuated any taint
associated with the illegal investigatory stop, relying on People v. Durant (2012) 205
Cal.App.4th 57 (Durant), whose reasoning we do not adopt. In Durant, police stopped
the defendant’s car for making a left turn at a stop light without signaling. During the
stop, police learned the defendant was on felony probation with a search condition,
searched the defendant, and found a loaded handgun. The defendant moved
unsuccessfully to suppress evidence of the handgun, arguing the traffic stop was unlawful
because the defendant did not break any laws by turning without signaling. (Id. at pp. 61-
62.)
       On appeal, the court noted the defendant’s turn without signaling was not illegal,
but the court did not reach the question of whether the traffic stop was unconstitutional.
Instead, it decided that, even assuming the traffic stop was illegal, the defendant’s
probation search condition attenuated any taint. (Durant, supra, 205 Cal.App.4th at p.
64.) The Durant court’s analysis followed the three factor test from People v. Brendlin,
focusing particularly on the second factor-intervening circumstances-to find that the

       2
          The United States Supreme Court, in Brendlin v. California, supra, 551 U.S.
249, determined that Brendlin, as a passenger in the car the police stopped, was “seized”
for Fourth Amendment purposes and had standing to challenge the constitutionality of the
traffic stop, reversing a prior opinion by the California Supreme Court. (Brendlin v.
California, supra, 551 U.S. at pp. 256-258.)
                                             10
probation search condition was sufficient to attenuate any taint from an unlawful stop.
Applying the third factor from People v. Brendlin, the court also noted that the officer
made the stop based on a good faith belief that the defendant’s conduct was illegal and
not for any “arbitrary, capricious, or harassing” reason. (Durant, supra, 205 Cal.App.4th
at pp. 64-66.)
       The Durant court’s intervening circumstances analysis proceeds on the implicit
assumption that a probation search condition is the same as the arrest warrant present in
People v. Brendlin. In the case of an arrest warrant, officers essentially have a duty to
arrest an individual once the outstanding warrant is confirmed. (See State v. Jones (Kan.
2001) 17 P.3d 359, 361 [noting arrest warrant gives police “right and duty to arrest”
person named in warrant]; cf. Arizona v. Evans (1995) 514 U.S. 1, 15 [quoting with
approval trial court statement that officer would have been “derelict in his duty if he
failed to arrest” individual subject to arrest warrant].) A probation search condition, on
the other hand, is a discretionary enforcement tool and therefore a less compelling
intervening circumstance than an arrest warrant.
       We do not read Durant to stand for the proposition that discovery after the fact of
a probation search condition will sanitize any unlawful detention without regard to the
circumstances surrounding that seizure. We are not comfortable with applying Durant to
the facts here, as doing so would open the door to random vehicle detentions for the
purpose of locating probationers having search conditions. We take no issue with the
lawfulness of probation search conditions, nor with the ability of law enforcement to
conduct suspicionless searches of known probationers. Our discomfort is in extending
these concepts to situations where an individual’s probation status is wholly unknown to
law enforcement at the time of the initial detention and is used only after the fact to
justify an otherwise unlawful search.
       The third factor from People v. Brendlin, flagrancy and purposefulness of police
misconduct, “is considered the most important because it is tied directly to the rationale
                                             11
underlying the exclusionary rule, deterrence of police misconduct.” (United States v.
Reed (7th Cir. 2003) 349 F.3d 457, 464-465.) Bad faith need not be shown for police
misconduct to be purposeful. Instead, this factor is met “when officers unlawfully seize a
defendant ‘in the hope that something might turn up.’ ” (United States v. Williams (6th
Cir. 2010) 615 F.3d 657, 670, quoting Brown v. Illinois (1975) 422 U.S. 590, 605.)3
Unlike the officer in Durant, who stopped a car based on a perceived traffic violation,
Deputy Gidding stopped the tan car without any observation of possible wrongdoing. As
we discussed previously, Deputy Gidding’s conduct was based on a hunch that defendant
might be in the vehicle. Though we do not suggest Deputy Gidding acted in bad faith,
we find his suspicionless stop of the tan car nonetheless purposeful for our attenuation
analysis. Based on this finding, together with our determination that defendant’s
probation search condition was an insufficient attenuating circumstance, we conclude that
the evidence obtained as a result of the detention and search should have been
suppressed.
                              III.       DISPOSITION
       The judgment is reversed. The trial court shall vacate its order denying
defendant’s suppression motion, enter a new order granting that motion, and permit
defendant to withdraw his plea. Because we reverse the judgment based on the
suppression issue, we do not reach defendant’s section 4019 conduct credits claim.




       3
         The California Supreme Court’s Brendlin factors are based on those set forth by
the United States Supreme Court in Brown v. Illinois. (People v. Brendlin, supra, 45
Cal.4th at pp. 268-269.)
                                            12
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Premo, Acting P.J.




____________________________
Mihara, J.




People v. Bates
H037910
Trial Court:                          Santa Cruz County Superior Court,
                                      Case No.: F20171

Trial Judge:                          Hon. Paul P. Burdick

Attorneys for Plaintiff/Respondent:   Laurence K. Sullivan
                                       Office of the Attorney General
The People
                                      John Michael Chamberlain
                                       Office of the Attorney General


Attorneys for Defendant/Appellant:    Matthew T. Bogosian
                                       Law Office of Matthew T. Bogosian
Marcus Taylor Bates
                                      Sixth District Appellate Program




People v. Bates
H037910
