Filed 1/6/14 P. v. Patel CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039130
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1227579)

         v.

SANGAM RAMESH PATEL,

         Defendant and Appellant.



         Pursuant to a negotiated plea agreement, defendant Sangam Ramesh Patel pleaded
no contest to possession of ephedrine or pseudoephedrine with intent to manufacture
methamphetamine (Health & Saf. Code, § 11383.5, subd. (b)(1)). The trial court
suspended imposition of sentence and placed defendant on probation for three years on
condition, among other things, that he serve one year in jail. On appeal, defendant
contends that the trial court erred when it denied his motion to suppress evidence. We
agree and reverse.


                                              I. Statement of Facts
                                           A. Prosecution Evidence
         At approximately 5:30 p.m. on January 12, 2010, Officer Jason Vincent was
patrolling the lot of the E-Z 8 Motel at 1515 North First Street in San Jose. During his
shift, he patrolled this parking lot at least once a day due to its reputation for narcotics use
and other vice crimes. Vincent noticed a dark-colored sedan with a leg protruding from
the driver’s side door. He continued patrolling the parking lot and returned to the sedan
at about 5:34 p.m. The door was now closed and Vincent could see the driver through
the driver’s side window. He could not see through the back window because there was
condensation on it. Vincent did not think that anything illegal had occurred, was
occurring, or was about to occur. However, he thought that being parked at the E-Z 8
Motel for an extended period was suspicious.
       Vincent positioned his patrol car at a slight angle approximately 10 feet behind the
sedan. He then exited his patrol car and stood behind its driver’s side door. At some
point, he activated the spotlight on the sedan. After Vincent said “hello” in a raised voice
to allow the sedan’s occupants to hear him, defendant exited the front passenger’s side of
the sedan.
       Vincent asked defendant to come to his location, which he did. At that time,
Vincent knew that there was at least one other person in the sedan. Vincent asked
defendant whether he had a weapon or anything illegal on him, and defendant said that he
did not. When Vincent asked for defendant’s identification, defendant gave him his
driver’s license. In response to Vincent’s questioning, defendant said that Romel
Lindsay, his business partner, was sitting in the driver’s seat and Lindsay’s female friend
was sitting in the back seat. Defendant also told Vincent that he had been resting in the
car and that they were at the motel to meet a friend to conduct business regarding
“V.O.I.P. telephones.” Vincent pat searched defendant, but he did not find anything.
Vincent verified that defendant’s identification was accurate. According to Vincent,
defendant was not free to leave at that time. Vincent told defendant to lean against his
patrol car with his hands where Vincent could see them.
       After speaking to defendant, Vincent asked Lindsay to get out of the car. Lindsay
told Vincent his name and date of birth, and Vincent contacted dispatch to conduct a
                                               2
records check. While waiting for a response from dispatch, Vincent questioned Lindsay
about the female passenger. Lindsay told Vincent that the woman’s name was Justine.
At about 5:46 p.m., Vincent was notified that there was an arrest warrant for Lindsay.
Vincent placed Lindsay under arrest and put him in the back seat of his patrol car.
Vincent completed questioning Lindsay about 12 minutes after his initial contact with
defendant.
         After placing Lindsay in his patrol car, Vincent asked the woman, who was sitting
in the back seat on the driver’s side, to exit the sedan. The woman told Vincent that she
did not have her identification with her, her name was Justine Elecho, and her date of
birth was May 13, 1964. Vincent provided this information to dispatch at about
5:50 p.m. When Vincent told the woman that dispatch was unable to locate anyone with
her name and date of birth in the records system, she told him that her name was Justine
Evangelista and her date of birth was May 12, 1966. Evangelista explained that she
initially gave him a different name and date of birth because she was on parole. Dispatch
confirmed that Evangelista was on parole. At 6:08 p.m., other officers arrived on the
scene.
         Sometime between 6:08 p.m. and 6:15 p.m., Vincent searched Evangelista and
found a small white plastic baggie that contained a white crystal-like substance in her
pocket. The officer recognized the substance as methamphetamine. In response to
Vincent’s questioning, Evangelista told him that she had used methamphetamine
approximately two days earlier and her backpack was on the back seat. Vincent located
the backpack, searched it, and found another plastic baggie containing a substance which
he recognized as methamphetamine. He also found mail and several credit cards that
were not in the names of any of the occupants of the sedan.
         After searching Evangelista’s backpack in the car, Vincent noticed a large quantity
of white pills in foil packaging in the front driver’s side door compartment. According to
Vincent, these pills were the type of nasal decongestant which contain pseudoephedrine,
                                              3
and pseudoephedrine is one of the ingredients in the production of methamphetamine.
Vincent continued searching the car and found a digital scale that had white residue on it.
The scale was between the front driver’s seat and the center console and was adjacent to
where Evangelista had been sitting. Vincent also found a second bag in the back seat.
The bag contained a laptop computer, multiple receipts for purchases of nasal-
decongestant pills, documentation of pill prices, and coupons for pills. Vincent asked
defendant if the bag belonged to him or to Evangelista. After defendant replied that it
belonged to him, he was arrested.


                                    B. Defense Evidence
       Defendant testified that he, Lindsay, and Evangelista were sitting in his mother’s
Honda Accord in the parking lot of the E-Z 8 Motel when a bright spotlight shined on the
car from behind. A voice from a megaphone or P.A. system said, “Hello. Can the person
in the black vehicle please step out of the vehicle.” Defendant described the tone of the
voice as “authoritative.” As defendant stepped out of the car, the voice said, “Stop. Take
your hands out of your pockets and put them where I can see them.” Defendant
complied.
       Defendant saw a police officer standing behind the door of his patrol car, which
was about three feet from the rear bumper of the sedan. The officer said in an
authoritative tone, “Step towards me.” After defendant complied, the officer asked him
what he was doing there, whether he had any weapons or anything harmful in the vehicle,
and who he was with. The officer also asked to see defendant’s driver’s license and if he
had weapons or dangerous items on him. When defendant said that he had no weapons,
the officer pat searched him and searched his pockets. Nothing illegal was found. The
officer then asked defendant to lean against the patrol car with his hands on the car and
his buttocks on his hands. The officer entered his patrol car to check defendant’s driver’s
license.
                                             4
       About 10 minutes later, the officer returned defendant’s driver’s license.
Defendant asked if he was free to go and the officer said, “Hang on,” and asked more
questions about what he was doing in the parking lot and who else was in the car. The
officer then had defendant sit in the back seat of his patrol car before he asked Lindsay to
exit the sedan. The officer pat searched Lindsay and eventually placed him in handcuffs.
After the officer finished questioning Evangelista, he asked defendant, “If we looked into
your vehicle, would we find any kind of weapons or anything illegal?” Defendant said,
“No,” and the officers searched his car. They never asked for his consent.


                              C. The Trial Court’s Ruling
       Following argument, the trial court stated: “There is no question that the officer
unlawfully conducted the detention and lacked reasonable suspicion. However, we have
to look to see whether or not there were attenuating factors. [¶] As [the prosecutor]
pointed out, the exclusionary rules purpose is to deter police misconduct, and that’s not
applicable in this case. Here, the officer’s knowledge of Ms. Evangelista’s parole
condition before the search, I am satisfied, did dissipate any taint that might have flown
from the detention of Mr. Patel. And the court is making that finding applying the factors
used by the Brendlin court and the Durant court.” The trial court then denied the motion
to suppress evidence.


                                       II. Discussion
       Defendant contends that the trial court erred when it denied his motion to suppress
evidence.
       “ ‘The standard of appellate review of a trial court's ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
                                              5
independent judgment. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924
(Weaver), quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
       The Fourth Amendment, made applicable to the states through the due process
clause of the Fourteenth Amendment, protects the individual against unreasonable
searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 656-660.) When a police
officer engages in conduct that violates the Fourth Amendment, the evidence obtained
through such conduct is subject to the exclusionary rule. (People v. Mayfield (1997) 14
Cal.4th 668, 760.)
       The protection of the Fourth Amendment extends to brief investigatory stops that
fall short of an arrest. (Terry v. Ohio (1968) 392 U.S. 1, 16-17.) “[I]n order to justify an
investigative stop or detention the circumstances known or apparent to the officer must
include specific and articulable facts causing him to suspect that (1) some activity
relating to crime has taken place or is occurring or about to occur, and (2) the person he
intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d
888, 893, superseded on other grounds by Cal. Const., art. I, § 28.)
       Here, it is undisputed that Vincent’s detention of defendant was unreasonable
under the Fourth Amendment. Vincent’s testimony did not include “specific and
articulable facts” that caused him to suspect that criminal activity had occurred, was
occurring, or about to occur, and that defendant was involved in that activity. (In re Tony
C., supra, 21 Cal.3d at p. 893.)
       As did the trial court, we turn to People v. Brendlin (2008) 45 Cal.4th 262
(Brendlin) and People v. Durant (2012) 205 Cal.App.4th 57 (Durant) to determine
whether the evidence in the present case must be suppressed.
       In Brendlin, supra, 45 Cal.4th 262, the officer stopped a vehicle with an expired
registration sticker after he confirmed that the vehicle’s registration had expired. (Id. at
p. 265.) However, prior to the stop, the officer was informed that a renewal application
was “ ‘in process,’ ” and he had observed a temporary operating permit on the vehicle.
                                              6
(Ibid.) In the officer’s experience, temporary operating permits sometimes were falsified
or belonged to a different vehicle. (Id. at p. 271.) The officer asked for the identification
of both the driver and the defendant, a passenger. (Id. at pp. 265-266.) He then verified
that the defendant was on parole and there was a warrant for his arrest. (Id. at p. 266.)
During the search of the defendant and the vehicle, officers found marijuana,
methamphetamine, and drug paraphernalia. (Ibid.) It was undisputed that the defendant
was unlawfully seized when the officer made the traffic stop. (Id. at p. 268.)
       However, in determining whether the evidence should have been suppressed
Brendlin began its analysis by observing: “ ‘ “[N]ot . . . all evidence is ‘fruit of the
poisonous tree’ simply because it would not have come to light but for the illegal actions
of the police. Rather, the more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’ ” ’ [Citations.] ‘[B]ut-for cause, or
“causation in the logical sense alone,” [citation] can be too attenuated to justify
exclusion . . . . ’ [Citations.]” (Brendlin, supra, 45 Cal.4th at p. 268.)
       In answering the question whether an intervening circumstance was sufficient to
break the causal connection between the illegal stop and the search, Brendlin considered
the three factors set forth in Brown v. Illinois (1975) 422 U.S. 590. (Id. at p. 269.) These
factors are: “ ‘the temporal proximity of the Fourth Amendment violation to the
procurement of the challenged evidence, the presence of intervening circumstances, and
the flagrancy of the official misconduct.’ [Citations.]” (Ibid.)
       Brendlin first noted that there were “only a few minutes” between the unlawful
traffic stop and the search incident to the arrest, and recognized that there was a split of
authority as to the relevancy of this factor. (Brendlin, supra, 45 Cal.4th at p. 270.)
Brendlin did not decide which line of authority was correct because it concluded that this
factor was outweighed by the other factors. (Ibid.) Brendlin next reasoned that the
                                               7
existence of a valid outstanding warrant “is an intervening circumstance that tends to
dissipate the taint caused by an illegal traffic stop. A warrant is not reasonably subject to
interpretation or abuse [citations], and the no-bail warrant here supplied legal
authorization to arrest defendant that was completely independent of the circumstances
that led the officer to initiate the traffic stop. [Citation.]” (Id. at p. 271.) As to the third
factor, Brendlin concluded that the officer’s insufficient justification for the stop “was not
so obvious as to make one question [his] good faith in pursuing an investigation of what
he believed to be a suspicious registration, nor does the record show that he had a design
and purpose to effect the stop ‘in the hope that something [else] might turn up.’
[Citations.]” (Ibid.) Thus, Brendlin concluded that the outstanding arrest warrant for the
defendant “sufficiently attenuated the connection between the unlawful traffic stop and
the subsequent discovery of the drug paraphernalia.” (Id. at p. 272.)
       Durant, supra, 205 Cal.App.4th 57 applied the Brendlin factors in a case in which
the independent intervening circumstance was a probation search condition. In Durant,
the officer conducted a traffic stop after the defendant made a left turn from a dedicated
left turn lane without activating his turn signal. (Id. at p. 61.) It was not until after the
officer activated his patrol car lights that his fellow officer reminded him that the
defendant was on probation. (Ibid.) In response to the officer’s questioning, the
defendant admitted that he was on probation and gave his consent to search him and his
vehicle. (Ibid.) The officer searched the defendant and found a loaded handgun. (Ibid.)
The defendant brought a motion to suppress evidence and argued that the traffic stop was
unlawful because he had not violated the Vehicle Code. (Ibid.) The trial court denied the
motion. (Id. at p. 62.)
       The Durant court concluded that, even assuming that the traffic stop was unlawful,
the defendant’s probation search condition attenuated any taint under Brendlin. (Durant,
supra, 205 Cal.App.4th at p. 65.) After noting that the discovery of the handgun occurred
shortly after the traffic stop, the court focused on the second factor and stated that the
                                                8
“search condition supplied legal authorization to search that was completely independent
of the circumstances leading to the traffic stop.” (Id. at p. 66.) As to the third factor, the
court concluded that the purpose of the exclusionary rule would not be served because the
officer was acting in good faith and did not act in “an arbitrary, capricious, or harassing
manner.” (Ibid.)
       Here, as in Brendlin, there was a short period of time between the illegal detention
and the search of the sedan. Vincent searched the sedan approximately 40 minutes after
unlawfully detaining defendant. Relying on People v. Boyer (2006) 38 Cal.4th 412
(Boyer), disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824,
830, footnote 1, however, the Attorney General argues that the first factor weighs in favor
of attenuation. The Attorney General’s reliance is misplaced. In Boyer, the consent to
search the house occurred several hours after the Fourth Amendment violation. (Boyer,
at p. 450.) Thus, if relevant, this factor would weigh against attenuation.
       As to the second factor, the intervening circumstance, defendant asserts that an
arrest warrant is not analogous to a parole search condition. When an officer has
confirmed the existence of an arrest warrant, he or she has a duty to arrest the individual.
(See People v. Hillyard (1979) 589 P.2d 939, 941 [“Once he knew of the warrant, the
officer would have been derelict in his duty not to have arrested defendant”].) In
contrast, a parole search condition does not implicate a similar duty on the officer’s part.
Thus, defendant argues that since a parole search condition is a discretionary tool for law
enforcement, it is less compelling as an independent intervening circumstance than an
arrest warrant.
       The Attorney General counters that Brendlin’s conclusion that a warrant was not
reasonably subject to interpretation or abuse was not based on whether the officer had a
duty to arrest the defendant. Rather, it was based on Hudson v. Michigan (2006) 547
U.S. 586, which observed that compliance with the warrant requirement is easily
determined because a warrant either exists or does not exist. (Brendlin, supra, 45 Cal.4th
                                               9
at p. 271.) The Attorney General thus argues that compliance with a search condition is
also easily determined on the same ground.
       Even if we were to assume that the parole search condition was an intervening
circumstance, we find the third factor dispositive under the facts of this case. “[T]he
flagrancy and purposefulness of the police misconduct, is generally regarded as the most
important because ‘it is directly tied to the purpose of the exclusionary rule—deterring
police misconduct.’ [Citations.]” (Brendlin, supra, 45 Cal.4th at p. 271.) In contrast to
Brendlin and Durant, here, the officer purposefully committed misconduct. Vincent
admitted that he did not believe that the occupants of the sedan were related to any
criminal activity that had occurred, was occurring, or was about to occur. He detained
them merely because they had been sitting in a vehicle in a high crime area for four
minutes. As every officer knows, a person’s presence in a high crime area, standing
alone, cannot serve as a basis for concluding that he or she has engaged, is engaged, or is
about to engage in criminal conduct. (Brown v. Texas (1979) 443 U.S. 47, 52.) The
present case was a classic example of a fishing expedition. When Vincent’s detention
and questioning of defendant did not produce evidence of criminal activity, he prolonged
the detention by turning to the other occupants “ ‘in the hope that something [else] might
turn up.’ [Citations.]” (Brendlin, supra, 45 Cal.4th at p. 271.) As Brendlin recognized,
the exclusionary rule was designed to protect individuals against this type of abuse.
Thus, we conclude that the existence of Evangelista’s parole search condition which led
to the search of the sedan did not cure the taint of the unconstitutional detention.
Accordingly, the trial court erred by failing to grant the motion to suppress the evidence.
       The Attorney General argues that “the trial court implicitly found that Vincent did
not engage in a fishing expedition, did not detain the occupants of the sedan for purpose
of searching them, and did not engage in flagrant and purposeful misconduct.” However,
this court defers to the trial court’s factual findings if they are supported by substantial
evidence. (Weaver, supra, 26 Cal.4th at p. 924.) There is no evidence to support these
                                              10
findings. Here, the officer detained defendant and the other occupants even though they
were not even remotely connected to any criminal activity.
      The Attorney General also argues that “[u]nlike the deputy in Brendlin, Vincent
had no direct evidence that the occupants of the sedan were behaving in a lawful
manner.” This argument is without merit. In Brendlin, the officer believed that a traffic
violation had occurred. More importantly, the facts, as related by Vincent, established
that they were behaving in a lawful manner.


                                    III. Disposition
      The order is reversed.


                                         _______________________________
                                         Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




                                            11
