Filed 08/12/19




                            CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


 THE PEOPLE,

     Plaintiff and Respondent,                       G055861

         v.                                          (Super. Ct. No. 15WF2590)

 ANTONINO FLORES,                                    OPINION

     Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Robert R.
Fitzgerald, Judge (retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) and David A. Hoffer, Judge. Reversed and
remanded with directions.
                 Patrick Dudley, under appointment by the Court of Appeal, for Defendant
and Appellant.
                 Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
              Following the partial denial of his motion to suppress evidence pursuant to
Penal Code section 1538.5, defendant Antonino Flores pleaded guilty to one count of
possession for sale of methamphetamine (Health & Saf. Code, § 11378). The court
suspended imposition of sentence and granted defendant probation under various terms
and conditions.
              Defendant’s sole contention on appeal is the court erred by not granting his
motion to suppress in its entirety. We agree and reverse the judgment and remand with
directions.
                         FACTS AND PROCEDURAL HISTORY
Evidence Presented
              One October day, a seven-member team of Huntington Beach police
officers went to an alleyway in a residential area claimed by the “Looney Tunes Crew,”
also known as the “LTK” street gang. LTK “usually me[t]” and “congregate[d]” in this
alley. Police went there as part of a “continuing . . . investigation” into LTK, to
“identify[] and contact[]” individuals regarding recent criminal activity, and to ascertain
possible gang membership or association of those in the area. There had been multiple
complaints regarding gang activity in the area, including “several shootings . . . over the
                                                        1
past several months,” and “drug sales . . . in the alley.” There were no reports of a
specific crime or of gang activity this day and time.
              Officers drove to the area in unmarked cars, although they wore clearly
marked police raid vests or jackets. They “came up with a plan to approach [the
members of LTK] on both sides because we knew as soon as they see police cars they
run.” The team approached on foot from opposite ends with a goal to “hopefully detain
them before they run.”


       1
        Most of these prior complaints came “over the weekend, at night.” Defendant’s
encounter with police in this matter occurred on a Thursday at about 1:00 p.m.

                                              2
              Stationed adjacent to one end of the alley, Sergeant Oscar Garcia saw
“people . . . running from the alley” toward him and Detective Daniel Quidort. Among
them, Garcia recognized defendant from “prior contacts dealing with the LTK gang,” and
suspected he “might be involved in criminal activity, past, present, or taking place at that
time.” Such activity could be “[e]ither gang activity or drug sales because of the
complaints we had received” “within days, weeks, months.”
              On cross-examination, Garcia explained defendant was singled out because
“we focused on [him] as he was coming towards us and we were already detaining him.”
He was also “the closest one we could get.” Garcia’s suspicion defendant was involved
in their current investigation was also based on “[t]he fact that he ran from an area where
we know there’s criminal activity taking place.” There was no evidence of criminal
activity then taking place.
              Quidort testified he saw defendant “making his way rather quickly” through
a residential walkway between the alley and where he and Garcia were located. Quidort
made eye contact, and defendant slowed to a “brisk walk,” and then to a “quick pace.”
When defendant was about five to ten feet from the officers, Quidort made contact.
Quidort told defendant to sit down on a step next to the sidewalk, and he immediately
                              2
complied without incident. At this point, Quidort did not know who defendant was or
anything about him, including any LTK connection. Only after defendant was seated did
Garcia tell Quidort who defendant was and that he believed defendant was a member of
LTK.
              Garcia acknowledged that when Quidort seated defendant on the step, he
was not “a suspect in a particular crime,” and was not “in the process of committing some
crime.” Similarly, Garcia had no information defendant had committed a crime “in the

       2
         Garcia testified Quidort “asked” defendant to sit on the step. Quidort recalled he
had “told” defendant to sit down. The trial court found it made no difference in these
circumstances. We agree.

                                             3
recent past [Garcia] wanted to investigate him for,” or “about a crime [Garcia] believed
he was about to commit.”
              There is no evidence defendant was patted down for weapons. He was not
handcuffed or placed under arrest, and neither Garcia nor Quidort had his weapon drawn.
              Garcia left the scene to check on officers who were detaining other
individuals nearby, momentarily leaving defendant with Quidort. While engaging in
“some small talk” with defendant, Quidort noticed a bulge in defendant’s sock. Quidort
radioed Garcia and asked him to come back. When Garcia returned, Quidort asked
defendant what he had in his sock. Defendant said it was “meth.” Quidort asked
defendant to remove it from his sock, and he complied, handing the package over to
Quidort. Quidort recognized the package, which contained four bindles of approximately
equal weight, as methamphetamine packaged for sale.
              Garcia knew defendant shared an apartment with a brother, an LTK
member who was on probation for narcotics sales and subject to warrantless searches and
seizures. Garcia asked defendant if he had anything illegal at home. Defendant did not
answer, but he agreed to go back to the apartment. He did not consent to have it
searched. Defendant said he did not want anyone else to get into trouble and did not want
his parents to find out about the drugs he had given to Quidort. Defendant, Garcia, and
Quidort then walked to defendant’s nearby apartment. Again, defendant was not
handcuffed and was not under formal arrest during this short walk.
              Garcia knocked on the door, and once he confirmed the probationer brother
was at home, the officers entered. Defendant did not give consent either to the entry or to
any subsequent search inside.
              Detective John Topartzer soon joined the group at the apartment and, at
Garcia’s request, defendant directed the officers to his bedroom, which he shared with a
different, nonprobationer, brother. Garcia asked defendant if he had anything illegal in
his room, and defendant responded by again saying that he did not want to get anyone in

                                            4
trouble. Defendant then walked over to a dresser drawer and pulled out a shirt containing
four small baggies of suspected methamphetamine.
               Topartzer arrested defendant for possession of a controlled substance with
the intent to sell. He was transported to jail, where Topartzer informed him of his
           3
Miranda rights. Defendant admitted to Topartzer that he was selling methamphetamine
in order to make money, and stated the methamphetamine “he had on him” was for sale.
The Trial Court’s Ruling
               The court found the initial contact between defendant, Garcia, and Quidort
was a detention, but was supported by reasonable suspicion. Recognizing that flight
alone cannot support a lawful detention, the court found additional supporting facts were
present, including the previous citizen complaints regarding crime in the alley—
specifically drug sales, assaults, and “gang-related activity.” The court also found
defendant had engaged in “headlong flight” from the group of people congregating in the
alley as soon as police arrived. “[W]hen you put all of that together there was articulable
suspicion to detain [defendant] and to see if he either had drugs on him or some kind of a
weapon that can be used in an assault.” “[T]his . . . is different than a situation where this
person is alone. He’s with that group that they expect to find in that alley. That’s the
gang hangout. That’s where they’ve gotten the complaints, and then he bolts. I think
when you put all of that together it . . . does constitute articulable suspicion to stop him.”
Relying on Illinois v. Wardlow (2000) 528 U.S. 119 (Wardlow), the court found
defendant’s unprovoked headlong flight from a high crime area upon seeing police
provided legal cause for an investigatory detention. Based on this finding, the court
concluded the drugs in defendant’s sock and any curbside statements should not be
suppressed.



       3
           Miranda v. Arizona (1966) 384 U.S. 436.

                                               5
              The court granted the suppression motion with respect to the evidence
seized at defendant’s apartment, ruling that the prosecution failed to prove express or
implied consent to either enter defendant’s room or to search it. It concluded the search
could not be justified as a probation search because defendant did not share his room with
his probationer brother. The People do not contest this ruling on appeal.
              Subsequently, the court received additional briefing and testimony
regarding the admissibility of defendant’s jailhouse statements to Topartzer. The court
considered whether the statements had been obtained by an exploitation of the illegality
of the residential search or instead by means sufficiently distinguishable to be purged of
the primary taint of that search. The court determined “[t]he same questions would have
been asked if [defendant] had simply been arrested after the drugs were found in his
sock.” It also noted detectives did not confront defendant with the illegally seized
evidence, opining “this might be different if at the interview room . . . all eight baggies
were lined up and then [defendant] was asked the same question. Here there’s a
break . . . . He is present to see that the other baggies are found, and then he’s taken to
the police station and Mirandized and makes his statement.” The court declined to
suppress the jailhouse statements, ruling that the illegal search of the residence did not
induce defendant’s later admissions at the jail.
                                       DISCUSSION
1. Standard of Review
              Defendant, as the moving party, had the initial burden of proving a
warrantless search or seizure occurred. (People v. Williams (1999) 20 Cal.4th 119, 127-
128, 136.) There was no warrant in this case, so the burden shifted to the prosecution to
show any warrantless searches or seizures were justified under the Fourth Amendment to
the United States Constitution. (Id. at pp. 130, 136-137.) “[T]he controlling burden of
proof at suppression hearings . . . [is] proof by a preponderance of the evidence.” (United
States v. Matlock (1974) 415 U.S. 164, 177, fn. 14.)

                                              6
              “As the finder of fact in a proceeding to suppress evidence [citation], 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.” (People v. Woods (1999) 21
Cal.4th 668, 673.) “In reviewing a trial court’s ruling on a motion to suppress, we defer
to the trial court’s factual findings, express or implied, where supported by substantial
evidence. [Citation.] And in determining whether, on the facts so found, the search was
reasonable for purposes of the Fourth Amendment to the United States Constitution, we
exercise our independent judgment. [Citation.]” (People v. Simon (2016) 1 Cal.5th 98,
120; Woods, at p. 673.) We consider whether a search or seizure was reasonable under
an objective standard, based on the facts and circumstances known to the officer but
without regard to the officer’s subjective state of mind. (Scott v. United States (1978)
436 U.S. 128, 138.)
2. Defendant’s Initial Detention Was Not Supported by a Reasonable Suspicion of
Criminal Activity.
              a. Background
              A person is seized within the meaning of the Fourth Amendment when an
officer, using a show of authority or physical force, intentionally restrains the person’s
freedom to move. (Brendlin v. California (2007) 551 U.S. 249, 254.) Even if “an
individual’s submission to a show of governmental authority takes the form of passive
acquiescence . . . a seizure occurs if ‘in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave’” (Id. at
p. 255.)
              An investigative detention is legally justified “when the detaining officer
can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).)

                                               7
              The People concede defendant was detained when Quidort had him sit
down near the curb. We therefore turn to the question whether defendant’s curbside
detention was supported by sufficient suspicion of criminal activity. Defendant argues it
was not. We agree.
              b. Analysis
              In United States v. Cortez (1981) 449 U.S. 411, the court stressed the
importance of taking into account “the totality of the circumstances” in determining the
propriety of a temporary detention: “Courts have used a variety of terms to capture the
elusive concept of what cause is sufficient to authorize police to stop a person. Terms
like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of
providing clear guidance dispositive of the myriad factual situations that arise. But the
essence of all that has been written is that the totality of the circumstances—the whole
picture—must be taken into account. Based upon that whole picture the detaining
officers must have a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” (Id. at pp. 417-418, italics added; see United States
v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu) [“‘stop must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity’”].) We emphasize this “whole picture” must provide articulable and objective
grounds to suspect the person of criminal activity, not simply of belonging to a certain
group; without more, it is not a crime to associate with a criminal street gang.
              “The touchstone of analyzing a detention, or for that matter any Fourth
Amendment issue, is reasonableness.” (People v. Foranyic (1998) 64 Cal.App.4th 186,
188.) “The guiding principle, as in all issues arising under the Fourth Amendment and
under the California Constitution [citations], is ‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal security.’
[Citation.]” (In re Tony C. (1978) 21 Cal.3d 888, 892.) That standard is of particular
importance when considering the concept of “‘reasonable suspicion,’” which governs

                                              8
detentions, because that term “does not lend itself to ready definition.” (Foranyic, at pp.
188-189) Indeed, “[t]he concept of reasonable suspicion, like probable cause, is not
‘readily, or even usefully, reduced to a neat set of legal rules.’ [Citation.]” (United
States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow).)
              Even so, it is well-established “the Fourth Amendment requires ‘“some
minimal level of objective justification’” for a detention. (INS v. Delgado (1984) 466
U.S. 210, 229.) “Although an officer’s reliance on a mere ‘hunch’ is insufficient to
justify a [detention] [citation], the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a preponderance
of the evidence standard [citation].” (Arvizu, supra, 534 U.S. at p. 274.)
              Thus, a reasonable suspicion justifying a detention is “simply . . . ‘a
particularized and objective basis’ for suspecting the person stopped of criminal activity.”
(Ornelas v. United States (1996) 517 U.S. 690, 696.) So long as the facts known to the
officer reasonably cause him or her to suspect the person he or she intends to detain
might be or has been involved in criminal activity, the detention is lawful. (United States
v. Place (1983) 462 U.S. 696, 702; see United States v. Hensley (1985) 469 U.S. 221,
227-228 [analysis same if suspicion involves past, as opposed to present or future,
criminal activity].)
              “To legally detain an individual because of ‘suspicious circumstances,’ the
prosecution must establish on the record that at the moment of the detention, there were
specific and articulable facts, which reasonably caused officers to believe that (1) some
activity out of the ordinary had taken place or was occurring or about to occur; (2) the
activity was related to crime; and (3) the individual under suspicion was connected to the
activity. [Citation.]” (People v. Bower (1979) 24 Cal.3d 638, 644, superseded by statute
on other grounds as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) Here, the
prosecution failed to meet its burden.



                                               9
              The prosecutor asked Garcia whether, when he saw defendant coming
towards him, he suspected defendant might “be involved in criminal activity past,
present, or taking place at that time.” Garcia answered he did, based on “[e]ither gang
activity or drug sales because of the complaints we had received.” He provided no other
specifics, including nothing pointing to defendant.
              Asked how recent these “complaints” were, Garcia replied, “Constantly,
within days, weeks, months.” Again, he did not articulate any specific “complaint” of
criminal activity involving or connected to defendant individually, even though he
recognized defendant as he approached.
              On appeal, the People’s sole justification for defendant’s initial detention is
based on his flight from officers at one end of the “high-crime area” alleyway towards
Garcia and Quidort at the other end. Relying on Wardlow, the People argue defendant’s
“unprovoked headlong flight” in a high crime area upon seeing police provides legal
cause for an investigatory detention. We are not persuaded.
              In Wardlow, uniformed police officers were driving in a four-car caravan of
police cars converging on an area known for heavy narcotics trafficking in order to
investigate drug transactions. “The officers were traveling together because they
expected to find a crowd of people in the area, including lookouts and customers.”
(Wardlow, supra, 528 U.S. at p. 121.) As they passed one location, one of the officers
saw the defendant standing next to a building, holding an opaque bag. The defendant
looked in the direction of the officers and fled. The officers turned their car around and
watched the defendant as he ran through a gangway and an alley. Eventually they
cornered him on the street and he was detained. During a patdown search, the officers
found a gun in the bag the defendant was seen holding when the officers first drove up.
              Assessing the situation from the officers’ perspective, the totality of the
circumstances—the bag, the high crime area, and the known heavy narcotics trafficking
in that area—put the defendant’s flight from the officers in an extremely suspicious light.

                                             10
“It was in this context that [the officer] decided to investigate [the defendant] after
observing him flee.” (Wardlow, supra, 528 U.S. at p. 124.) Finding the detention lawful,
the court noted “[h]eadlong flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of
such.” (Ibid.)
              Nonetheless, the high court also has a long history of recognizing that
innocent people may reasonably flee from police: “[I]t is a matter of common knowledge
that men who are entirely innocent do sometimes fly from the scene of a crime through
fear of being apprehended as the guilty parties, or from an unwillingness to appear as
witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when
no man pursueth, but the righteous are as bold as a lion.’ Innocent men sometimes
hesitate to confront a jury; not necessarily because they fear that the jury will not protect
them, but because they do not wish their names to appear in connection with criminal
acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or
because they do not wish to be put to the annoyance or expense of defending
themselves.” (Alberty v. United States (1896) 162 U.S. 499, 511; see also Souza, supra, 9
Cal.4th at p. 243 (conc. opn. of Mosk, J.) [noting the “unfortunate reality that some
individuals in our society, often members of minority groups, improperly view the police
more as sources of harassment than of protection. These individuals may innocently flee
at the first sight of police in order to avoid an encounter that their experience has taught
them might be troublesome”].)
              Thus, the Supreme Court has never endorsed a per se rule that flight
establishes reasonable suspicion to detain. Instead, flight is but one relevant factor in the
reasonable suspicion analysis.
              Similarly, in general “[a]n area’s reputation for criminal activity is an
appropriate consideration in assessing whether an investigative detention is reasonable
under the Fourth Amendment.” (Souza, supra, 9 Cal.4th at p. 240.) But “[a]n

                                              11
individual’s presence in an area of expected criminal activity, standing alone, is not
enough to support a reasonable, particularized suspicion that the person is committing a
       4
crime.” (Wardlow, supra, 528 U.S. at p. 124, see also Brown v. Texas (1979) 443 U.S.
47, 52 [“The fact that appellant was in a neighborhood frequented by drug users, standing
alone, is not a basis for concluding that appellant himself was engaged in criminal
conduct”].) Hence, like flight, presence in a “high crime area” is probative, but not
sufficient on its own to justify a detention. (See People v. Casares (2016) 62 Cal.4th
808, 838, overruled on another ground by People v. Dalton (2019) 7 Cal.5th 166, 263
[“reasonable suspicion cannot be based solely on factors unrelated to the defendant, such
as criminal activity in the area”].)
              In Souza, our Supreme Court explicitly rejected an argument flight alone
was sufficient to justify a detention. (Souza, supra, 9 Cal.4th at p. 239.) Rather, flight is
probative “only in those instances in which there is other indication of criminality, such
as evidence that the defendant fled from a crime scene or after being accused of a crime.”
(Id. at pp. 235-236.) “To put it succinctly,” there must be “‘flight plus.’” (Id. at p. 236;
see People v. Britton (2001) 91 Cal.App.4th 1112, 1118 [more than simple unprovoked
flight occurred; the officer testified “to what might be dubbed ‘flight plus’”].)
              One such “flight-plus” factor was recognized in Souza itself: “time of
night” is a “pertinent factor in assessing the validity of a detention.” (Souza, supra, 9
Cal.4th at p. 241.) “[T]he presence on the sidewalk at 3 a.m. of two people who appeared
to be talking to the occupants of a car parked in total darkness in an area that [the officer]
described as a ‘high crime area,’ coupled with the evasive conduct by the occupants and
defendant’s sudden flight when [the officer] directed his patrol car’s spotlight toward the
group, justified a brief, investigative detention.” (Id. at p. 242.) Similarly, in People v.
Holloway (1985) 176 Cal.App.3d 150, 155, cited with approval in Souza, the court
       4
         “‘[I]t may be fairly said that our entire nation is a high crime area,’ particularly
with respect to drug-related crimes.” (Souza, at p. 241.)

                                              12
upheld a detention based upon defendant’s presence in a high crime area with four other
men who were standing next to a car parked in a residential neighborhood. While
acknowledging the defendant’s right to be in such an area conversing with acquaintances,
in Holloway the “social gathering” was at 3:00 a.m. (Holloway, at p. 155.)
              Here, in contrast, the suspected LTK group was gathering in their own
neighborhood at 1:00 p.m. on a Thursday, and Garcia had testified the citizen complaints
of criminal and gang activity mostly came “over the weekend, at night.”
              Other “flight-plus” cases we have reviewed are similarly distinguishable,
and the People have provided no authority directly on point. Instead, as they did below,
they rely entirely on Wardlow, and argue that it holds that “flight” plus “high crime area”
equals reasonable suspicion for a detention. This misconstrues Wardlow, because it did
not make such a bright-line holding.
              In Wardlow, the officers converged on an area of Chicago known for
“heavy narcotics trafficking,” not merely the ubiquitous “high crime area” in the present
case. (Wardlow, supra, 528 U.S. at pp. 121, 124.) More importantly, the key difference
between Wardlow and the present case is that when the defendant in Wardlow, was first
seen, he was standing near a building and holding an opaque bag in this heavy narcotics
trafficking area. Possession of a bag is a specific and articulable fact that can support a
reasonable suspicion of a crime afoot. (See People v. Lilienthal (1978) 22 Cal.3d 891,
898-899 [“Reasonable grounds for believing a package contains contraband may be
adequately afforded by the package’s shape, design, and the manner in which it is
carried”]; cf. Henry v. United States (1959) 361 U.S. 98, 104 [police must have
reasonable grounds to believe a package contains contraband and its “shape and design
might at times be adequate”].) In contrast, here defendant was not seen holding anything;
his contraband was secreted in his sock.
              Moreover, unlike the officers in Wardlow, here Quidort did not observe
defendant flee after making eye contact with him; just the opposite. Quidort testified he

                                             13
heard over his radio that “at least one of the subjects had started to run westbound from
                                                              5
the alley.” Defendant was never identified as this “subject.” Moreover, there is no
evidence regarding what, if anything, defendant did before he fled from the alley. Thus,
there is no evidence showing defendant fled “‘at the first sight of a uniformed officer,’”
as the People argue in their brief.
              There is also nothing here to indicate whether the officers at the other end
of the alley had ordered the “subjects” to remain where they were, or had communicated
with them in any way. If not, defendant had no obligation to stay put simply because
police had shown up. (Florida v. Royer (1983) 460 U.S. 491, 497-498; compare United
States v. Smith (9th Cir. 2011) 633 F.3d 889, 891 [officer in a high crime area activated
siren and lights, got out and ordered the defendant to stop, and “headlong run” ensued;
detention lawful].)
              Quidort saw defendant “making his way rather quickly westbound through
one of the walkways between the apartment buildings.” After making eye contact with
Quidort, defendant slowed and walked directly towards the officers before getting within
five to ten feet of them and being detained. Whatever else it may mean, “unprovoked
                                                                                     6
headlong flight” is not a “brisk walk,” or a “quick pace” towards police officers.
              Even characterizing defendant’s behavior as “flight,” this is not the
“headlong flight” described in Wardlow. Moreover, although defendant’s flight in a high
crime area might be suggestive of wrongdoing, it did not corroborate any reliable or
articulable suspicion of actual criminal behavior.



       5
         Garcia testified he saw “people . . . running from the alley” toward him and
Quidort, implying defendant was not the only one.
       6
        We need not determine whether defendant’s flight in this case was truly
“unprovoked,” when one of the purposes of the police activity that day was, in fact, to
“provoke” such flight.

                                            14
                The trial court’s conclusion “there was articulable suspicion to detain
[defendant] and to see if he either had drugs on him or some kind of a weapon that can be
used in an assault” is unsupported by any evidence that this specific person would be
carrying either drugs or a weapon at the time of his detention. Indeed, the fact defendant
was not patted down for weapons, handcuffed, or detained at gunpoint belies any notion
the officers reasonably suspected defendant of having “a weapon” that could have been
“used in an assault.”
                Wardlow fails to provide the People with the necessary support needed to
justify defendant’s initial seizure. Consequently, the People failed to meet their burden to
show specific, articulable grounds to justify detaining defendant. As such, the evidence
obtained from defendant immediately following his detention was unlawfully obtained
and should have been suppressed. (United States v. Crews (1980) 445 U.S. 463, 470, 471
[exclusionary rule sanction applies to any “‘fruits’” of a constitutional violation—
“whether such evidence be tangible, physical material actually seized in an illegal search,
items observed or words overheard in the course of the unlawful activity,” or
“confessions or statements of the accused obtained during an illegal arrest and
detention”].)
3. Defendant’s Subsequent Stationhouse Statements Were Tainted by Both His Unlawful
Detention and the Unlawful Search of His Bedroom.
                Unlike a detention—a limited seizure justified merely by reasonable
articulable suspicion of criminal activity—normally a search may only be justified by
probable cause, whether with or without a warrant. “A warrantless search is
unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the
few narrowly drawn exceptions to the constitutional requirement of a warrant.” (People
v. Schmitz (2012) 55 Cal.4th 909, 916.) Entry into a residence is a search under the
Fourth Amendment. (Welsh v. Wisconsin (1984) 466 U.S. 740, 748 [“‘physical entry of



                                              15
the home is the chief evil against which the wording of the Fourth Amendment is
directed’”].)
                Here, officers entered defendant’s residence and bedroom without a
warrant, and the People offer no exception to the warrant requirement. The trial court
found the entry was unlawful and suppressed the physical evidence found inside. The
People do not challenge that ruling. The only question is whether defendant’s subsequent
statements to Topartzer at the stationhouse were tainted by the unlawful detention and the
similarly unlawful search of his bedroom, and therefore should have been suppressed.
The answer is obvious.
                The People’s citation to New York v. Harris (1990) 495 U.S. 14 (Harris) is
unavailing. In that case, police entered a residence without a warrant or consent in order
to make an arrest. (Id. at pp. 15-16.) While inside, no evidence was found, but the
defendant made postarrest incriminating statements. (Id. at p. 16.) Significantly, the
police in Harris had untainted probable cause to arrest the defendant before the unlawful
entry, making the arrest—the defendant’s seizure—lawful, despite the fact the entry into
the residence—the search—was unlawful. Thus, “where the police have probable cause
to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made
by the defendant outside of his home, even though the statement is taken after an arrest
                                            7
made in the home in violation of Payton.” (Harris, at p. 21.)
                Here, however, police did not have probable cause to arrest defendant until
after he was unlawfully detained, drugs were found on his person, and he made
incriminating statements. Put simply, defendant’s arrest by Topartzer was illegal.
Moreover, the warrantless search of defendant’s room was made to find additional
incriminating evidence, not to effectuate an otherwise lawful arrest.

       7
         Payton v. New York (1980) 445 U.S. 573 (Fourth Amendment prohibits police
from effecting warrantless and nonconsensual entry into suspect’s home to make a felony
arrest).

                                                16
              In Brown v. Illinois (1975) 422 U.S. 590 (Brown), the defendant
approached the rear entrance to his apartment and saw, pointed at him through the
window, a gun held by a stranger inside the apartment. The man said: “‘Don’t move,
you are under arrest.’” Another man, also with a gun, came up behind the defendant and
repeated that he was under arrest. The two men turned out to be Chicago police
detectives. They had earlier broken into the defendant’s apartment, searched it, and then
arrested the defendant when he arrived, all without probable cause and without a warrant.
They later testified they made the arrest for the purpose of questioning the defendant as
part of a murder investigation. (Id. at p. 592.)
              The issue in Brown was whether subsequent Miranda warnings purge the
taint from statements obtained in violation of the Fourth Amendment. After holding they
do not necessarily purge any taint, the high court further observed: “The illegality here,
moreover, had a quality of purposefulness. The impropriety of the arrest was obvious;
awareness of that fact was virtually conceded by the two detectives when they repeatedly
acknowledged, in their testimony, that the purpose of their action was ‘for investigation’
or for ‘questioning.’ [Citations.] The arrest, both in design and in execution, was
investigatory. The detectives embarked upon this expedition for evidence in the hope
that something might turn up. The manner in which [the defendant’s] arrest was effected
gives the appearance of having been calculated to cause surprise, fright, and confusion.”
(Brown, supra, 422 U.S. at p. 605.)
              While Brown involved an unlawful arrest, the high court’s comments bear
repeating in the context of the detention in this case. Here, police assembled around the
alleyway as part of a “continuing investigation” into LTK, to “identify[] and contact[]”
individuals regarding recent criminal activity, and to ascertain possible gang membership
or association of those in the area. Moreover, unlike the police in Brown, here there was
no specific crime they were investigating on this particular day and time. Instead, the



                                             17
officers were flushing out their “usual suspects” in the same manner a hunter uses a dog
to dash into the brush and force the gamebirds to take flight—literally.
              Garcia stated defendant was singled out because “we focused on [him] as
he was coming towards us and we were already detaining him.” He was also “the closest
one we could get.” Garcia further stated his suspicion defendant was involved in their
current investigation was based on “[t]he fact that he ran from an area where we know
there’s criminal activity taking place.” But there was no evidence of then occurring
criminal activity, let alone that defendant was himself involved.
              Normally, the subjective intent of police officers is irrelevant in assessing
cause to detain. (Whren v. United States (1996) 517 U.S. 806, 814.) Even so, “purpose is
often relevant when suspicionless intrusions pursuant to a general scheme are at issue.”
(City of Indianapolis v. Edmond (2000) 531 U.S. 32, 47.)
              Here, defendant’s detention, “both in design and in execution, was
investigatory. The detectives embarked upon this expedition for evidence in the hope
that something might turn up.” (Brown, supra, 422 U.S. at p. 605.) Like Brown, the
manner in which defendant’s detention was effected here gives the appearance of having
been calculated “to cause surprise, fright, and confusion.” (Brown, at p. 605.) And
flight.
              Indeed, from the outset, the plan here was to have police at both ends of the
alleyway, make their presence known, and then flush out and detain anyone who ran.
Defendant was caught and detained, not because of individualized suspicion of criminal
activity, but by being “the closest one we could get.”
              We do not suggest that police may not use group detentions or encounters
with suspected or known gang members in order to do in-field identifications, conduct




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                                                                  8
field interviews, take photographs, or serve gang “STEP notices.” But these practices
are intelligence and information gathering techniques, not a means to exploit Fourth
Amendment violations for the purpose of obtaining evidence of crimes of which the
police are otherwise unaware or unsuspecting.
              Defendant’s drugs and curb-side statements were obtained by exploiting his
unlawful detention and should have been suppressed. The entry and search of
defendant’s room was also unlawful, as the trial court found. Perforce, defendant’s
Mirandized statements at the police station were obtained by exploiting both of the earlier
Fourth Amendment violations and, as a result, they too should have been suppressed.
(Brown, supra, 422 U.S. at pp. 603-604.)




       8
          A STEP notice “informs the recipient that he is associating with a known gang;
that the gang engages in criminal activity; and that, if the recipient commits certain
crimes with gang members, he may face increased penalties for his conduct. The issuing
officer records the date and time the notice is given, along with other identifying
information like descriptions and tattoos, and the identification of the recipient’s
associates.” (People v. Sanchez (2016) 63 Cal.4th 665, 672; see Pen. Code, § 186.20 et
seq. [California Street Terrorism Enforcement and Prevention Act].)

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                                      DISPOSITION
              Although the court suppressed a portion of the evidence obtained by the
warrantless searches and seizures in this case, it should have suppressed it all. The
judgment is reversed, and the case is remanded with directions to grant defendant’s
motion to suppress in its entirety.



                                                 THOMPSON, J.


WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.




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