Filed 5/24/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H040942
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. No. F1241967)

        v.

FREDDY ESPINO,

        Defendant and Appellant.


        Police stopped defendant Freddy Espino for speeding. Based on an informant’s
tip and other factors, the police extended the stop for further investigation. In the course
of the stop, defendant consented to a search of his person, whereupon officers found an
object in his pocket. Thinking the object was crack cocaine, the officers handcuffed
defendant. But after examining the object, the police determined it was not crack
cocaine, but a diamond. Without removing the handcuffs, police continued to question
defendant and requested consent to search his car. After some hesitation, defendant gave
consent for the car search, whereupon the police found several grams of
methamphetamine in defendant’s car.
        Defendant moved to suppress the seized evidence under Penal Code section
1538.5. The trial court denied the motion. Defendant then pleaded no contest to
possession of methamphetamine for sale, possession of a firearm by a felon, and
possession of ammunition by a felon. He also admitted having a prior conviction for
possession of cocaine for sale. The trial court imposed a total term of two years eight
months.
       Defendant appeals from the denial of his motion to suppress. He does not dispute
that the police lawfully stopped him for speeding, but he challenges the constitutionality
of the seizure on two grounds. First, he contends the police lacked reasonable suspicion
to prolong the stop longer than necessary to address the traffic violation. Second, he
contends he did not give valid consent for the car search because he was unlawfully
under arrest when officers requested his consent.
       We conclude the police had reasonable suspicion to extend the duration of the
initial traffic stop beyond that necessary for traffic enforcement purposes. However, we
hold defendant did not give valid consent for the car search because the police lacked
probable cause to keep him under arrest when they requested his consent. We will
reverse the judgment.1
                        I. FACTUAL AND PROCEDURAL BACKGROUND
       Police searched defendant’s vehicle after stopping him for speeding. An onboard
camera in the patrol car recorded video of the stop, but not audio. In defendant’s car,
police found several grams of methamphetamine, a scale, and numerous small plastic
bags. In a subsequent warrant search of defendant’s home, police found a gun and
ammunition in a safe.
   A. Facts of the Search
       At the suppression hearing, Gilroy Police Sergeant Joseph Deras testified as
follows. In March 2012, he was conducting a “speed enforcement operation” near First
Street and Kern Street in Gilroy. He had a civilian “ride along” in the patrol car with
him. At around 7:30 p.m., Sergeant Deras stopped defendant for driving 50 to 51 miles
per hour. The speed limit was 35 miles per hour. After defendant pulled over, Sergeant
Deras approached defendant’s car, explained the reason for the stop, and requested
defendant’s license, registration, and proof of insurance. Defendant supplied all three

       1
        Defendant also contends the abstract of judgment misstates the amount of the
penalty assessments imposed by the court. Because we will reverse the judgment, we do
not reach this claim.
                                             2
documents, and Sergeant Deras returned to his patrol car for a routine license and warrant
check. He determined there were no warrants outstanding, defendant’s license was valid,
and he was not on probation or parole. But the check also showed defendant was
registered as a sex offender under Penal Code section 290.
       Sergeant Deras testified that, in response to learning an individual is a registered
sex offender, his practice was to verify that the registrant lives at the registered address.
With respect to defendant, Sergeant Deras testified, “By definition, [defendant] was in
compliance” as a registrant under Penal Code section 290. However, Sergeant Deras also
testified that, in the days before the stop, another officer told him certified letters had
been sent to defendant’s address, but police were unable to establish fact-to-face contact
with defendant. Sergeant Deras inferred it was possible somebody else could have signed
and returned the letters, and that defendant did not actually live at the address. Sergeant
Deras made several calls to the other officer but could not reach him.
       While Sergeant Deras was still in his patrol car, Gilroy Police Detective Bill
Richmond called Sergeant Deras on his cell phone. Detective Richmond told Sergeant
Deras to “hang on” to defendant. Detective Richmond had information from a “validated
confidential informant” that defendant was selling narcotics and firearms. Sergeant
Deras testified that he managed all the informants in Gilroy, he was aware of an
informant “looking into” defendant, but he did not have “particulars about the exact
amount of narcotics” or types of firearms involved.
       At that point, Sergeant Deras decided to wait with his patrol car until other officers
arrived to assist with the stop. He testified that he needed more information from
Detective Richmond, and he was concerned about the possible presence of a firearm in
the car. For that reason, he preferred to have other officers approach the car with him.
       Around the same time, the civilian ride along told Sergeant Deras that he had seen
defendant “making a very pronounced movement” to the passenger side of the car when



                                               3
he first pulled over. Based on the civilian’s description, Sergeant Deras considered this
to be a “furtive movement,” i.e., a possible attempt to conceal contraband.
       After several minutes, Detective Richmond and another officer arrived. The
officers approached defendant’s car, ordered him to get out, and walked him to the
sidewalk for questioning. Defendant told the officers he was living at the address listed
in his sex offender registration, but he had never signed for any certified letters. After
defendant put his hands in his pockets several times, the officers asked defendant for
consent to search his pockets. Defendant consented to the search. The officers found
“some type of hard, small, little object” consistent with the size and texture of crack
cocaine. At that point, the officers placed defendant in handcuffs. They told him he was
being detained and that he was not under arrest.
       At the suppression hearing, when the prosecutor asked Sergeant Deras why they
placed defendant in handcuffs, he answered, “Well, as soon as that object came out, we
thought it was crack cocaine,” so “we thought he was committing a felony.” After
examining the object under his patrol car spotlight, however, Sergeant Deras determined
it was a diamond. Sergeant Deras estimated it took him “probably a minute” to
determine the object was not contraband.
       After Sergeant Deras determined the object was a diamond, he asked defendant
whether there were any weapons or drugs in the car. Defendant was still handcuffed at
the time, and he had been handcuffed for about two or three minutes. When Sergeant
Deras asked defendant for consent to search the car, defendant “took a moment to think
about it” and gave his consent, whereupon the officers began their search. On the front
passenger side floorboard of the car, Sergeant Deras found a green plastic baby wipes
box. He opened the box and found a number of small, clear plastic bags, an electronic
scale, and several grams of methamphetamine. Based partly on this evidence, police
obtained a search warrant for defendant’s residence, where they found a safe containing a
.22-caliber revolver and ammunition.

                                              4
       The video from Sergeant Deras’ onboard camera establishes a rough timeline of
the aforementioned events. The camera recorded the stop from behind defendant’s car.
Thirty seconds after defendant’s car pulled over, Sergeant Deras approached the
passenger’s side of the car and spoke with defendant for about a minute. He then walked
back to his patrol car and out of view of the camera. The video shows defendant waited
in his car for the next six minutes, at which time two officers approached the car, and
defendant exited the vehicle. The officers then walked defendant to the sidewalk, out of
view of the camera. About four minutes later, the officers seated defendant on the curb
of the sidewalk with his hands handcuffed behind him. One minute later, two officers
began searching the car. About 13 minutes elapsed between the initial stop and the
search of the car. The video does not show defendant making a “very pronounced
motion” as described by the civilian ride along.
   B. Procedural Background
       1. Motion to Suppress
       Defendant challenged the legality of the search and moved to suppress the seized
evidence under Penal Code section 1538.5. Defendant argued that the police prolonged
the search longer than necessary to effectuate the legitimate purposes of the traffic stop.
He also argued that he did not validly consent to a search of the car when police
requested his consent. Furthermore, he argued that the seized drugs, as the fruits of a
poisonous tree, could not support a finding of probable cause for the subsequent warrant
search of his home.
       The prosecution responded that the tip from a confidential informant gave officers
reasonable suspicion to detain defendant longer than necessary to deal with the speeding
violation. The prosecution also argued that the discovery of the object in defendant’s
pocket gave them probable cause to search the car. Finally, the prosecution argued that
defendant gave valid consent for the search.



                                               5
       The trial court held a hearing at which the prosecution presented the testimony of
Sergeant Deras and the civilian who accompanied him. After taking the matter under
submission, the court made several findings. The court found the police officers “had a
variety of information they needed to deal with from a variety of sources at the time of
the stop.” The court reviewed the video of the stop and matched the progression of
events to the officer’s narrative. Based on its review, the court found that the total time
elapsed from the stop of the car to the seizure of contraband was 13 minutes. The court
found that an insignificant amount of time had passed between the time police discovered
that the object seized from defendant’s pocket was not contraband to the time defendant
consented to the search of his car. Based on these findings, the court concluded the
search was constitutional and it denied the motion to suppress.
       2. Proceedings After Denial of the Motion to Suppress
       The prosecution charged defendant by information with possession of
methamphetamine for sale, possession of a firearm by a felon, and possession of
ammunition by a felon. (Health & Saf. Code, § 11378; former Pen. Code, §§ 12021,
subd. (a)(1), 30305, subd. (a)(1).) The information alleged defendant had suffered a prior
conviction for possession of cocaine for sale. (Health & Saf. Code, § 11370.2, subd. (c).)
       After the trial court denied the motion to suppress, defendant pleaded no contest to
all three counts and admitted the prior conviction allegation. The trial court imposed a
total term of two years eight months, composed of the middle term of two years on the
first count consecutive to eight months (one-third the middle term) on the second count.
The court also imposed the middle term of two years on the third count to run
concurrently. The court struck the punishment for the prior conviction allegation.
                                        II. DISCUSSION
       Defendant does not challenge the legality of the initial stop. Instead, he contends
Sergeant Deras prolonged the duration of the stop longer than reasonably necessary to
address the speeding violation. He argues that the detention had therefore become

                                              6
unconstitutional by the time he consented to the search. Second, defendant argues that he
was unlawfully under arrest when he consented to the car search because the probable
cause for his arrest—the discovery of the object in his pocket—ceased to exist when
police discovered the object was a diamond. He contends the consent to search his car
was therefore invalid.
       The Attorney General contends Sergeant Deras had reasonable suspicion
independent of the traffic violation—e.g., the confidential informant’s tip—which
justified the prolonged detention. The Attorney General also contends defendant validly
consented to the search because the police had the authority to arrest defendant for the
traffic violation under Atwater v. City of Lago Vista (2001) 532 U.S. 318 (Atwater).
   A. Legal Standards
       The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and seizures,
shall not be violated . . . .” (U.S. Const., 4th Amend.) This guarantee has been
incorporated into the Fourteenth Amendment to the federal Constitution and thereby
applies to the states. (Mapp v. Ohio (1961) 367 U.S. 643.)
       In reviewing a lower court’s ruling, we are bound by factual findings supported by
substantial evidence. (Camacho, supra, 23 Cal.4th at p. 830.) The ultimate question of
whether a search was unreasonable is a question of law we review de novo. (Ibid.)
       In response to a motion to suppress evidence seized in a warrantless search, the
prosecution bears the burden to prove police conducted the search under a valid
exception to the Fourth Amendment’s warrant requirement. (People v. Camacho (2000)
23 Cal.4th 824, 830 (Camacho).) When the prosecution asserts that a defendant has
consented to a search, the prosecution bears the additional burden of proving by a
preponderance of the evidence “that the defendant’s manifestation of consent was the
product of his [or her] free will and not a mere submission to an express or implied
assertion of authority.” (People v. James (1977) 19 Cal.3d 99, 106.)

                                             7
   B. Reasonable Suspicion Supported the Initial Period of Detention
       Defendant complains that although Sergeant Deras initially stopped him for
speeding, officers never attempted to issue him a speeding ticket and instead expanded
the scope of the stop beyond its initial purpose. The Attorney General argues that
Sergeant Deras had reasonable suspicion to extend the duration of the stop beyond that
necessary to issue defendant a speeding ticket. We agree with the Attorney General that
the police had reasonable suspicion independent of the traffic violation sufficient to
extend the duration of the detention.
       “A seizure for a traffic violation justifies a police investigation of that violation.”
(Rodriguez v. United States (2015) 135 S.Ct. 1609, 1614 (Rodriguez).) However, “[a]
seizure that is justified solely by the interest in issuing a warning ticket to the driver can
become unlawful if it is prolonged beyond the time reasonably required to complete that
mission.” (Illinois v. Caballes (2005) 543 U.S. 405, 407.) “[T]he tolerable duration of
police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to
address the traffic violation that warranted the stop, [citation] and attend to related safety
concerns, [citation]. [Citations.] Because addressing the infraction is the purpose of the
stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ [Citations.]
Authority for the seizure thus ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed.” (Rodriguez, at p. 1614.) These tasks include
those incidental to traffic enforcement, such as validating a license and registration,
searching for outstanding warrants, and checking for proof of insurance. (Id. at p. 1615.)
       If the police develop reasonable suspicion of some other criminal activity during a
traffic stop of lawful duration, they may expand the scope of the detention to investigate
that activity. (See Illinois v. Caballes, supra, 543 U.S. at pp. 407-408; United States v.
Gomez Serena (8th Cir. 2004) 368 F.3d 1037, 1041 [an investigative stop can grow out of
a traffic stop if the officer has reasonable suspicion of criminal activity to expand the
investigation, even if those suspicions were unrelated to the underlying traffic offense].)

                                               8
Defendant concedes this point, but he argues that Sergeant Deras lacked any reasonable
suspicion of criminal activity apart from the speeding violation. We disagree.
       Reasonable suspicion is a lesser standard than probable cause and can arise from
less reliable information than that required for probable cause. (People v. Wells (2006)
38 Cal.4th 1078, 1083.) To be reasonable, an officer’s suspicion must be supported by
some specific, articulable facts reasonably consistent with criminal activity. (Ibid.) The
officer’s subjective suspicion must be objectively reasonable. (Ibid.) “[A]n investigative
stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though
the officer may be acting in complete good faith.” (Ibid.)
       Here, Sergeant Deras was aware of several facts supporting reasonable suspicion
of independent criminal activity. First, he had evidence suggesting that defendant may
not have been in compliance with Penal Code section 290’s registration requirements.
Second, Sergeant Deras was aware that a confidential informant had information
suggesting defendant may have been involved in selling drugs and guns. Third, the
civilian ride along observed defendant making a furtive movement as Sergeant Deras was
stopping his vehicle. Taken together, these facts provided reasonable suspicion sufficient
to extend the length of the traffic stop beyond that necessary for traffic enforcement.
       Defendant contends the informant’s tip was too vague and unsubstantiated to
provide reasonable suspicion of defendant’s involvement in drugs and guns. If Detective
Richmond’s call relaying the confidential informant’s tip was the sole basis for
reasonable suspicion, this argument would have merit. The so-called “collective
knowledge” or “official channels” rule requires the prosecution to provide corroboration
of the accuracy of anonymous tips relayed in this manner. The court in In re Eskiel S.
held that “[a] radio broadcast which cannot be traced back to its source amounts to
nothing more than an anonymous tip. Hence, the information contained in such a
broadcast can support a detention only where that information is ‘sufficiently
corroborated to furnish the requisite reasonable suspicion.’ ” (In re Eskiel S. (1993)

                                             9
15 Cal.App.4th 1638, 1644.) Here, however, Sergeant Deras testified that he had some
personal knowledge of the informant’s tip because he was responsible for managing all
the confidential informants in Gilroy. Furthermore, he relied on the additional factors set
forth above—e.g., defendant’s furtive movement, and other officers’ inability to confirm
defendant’s place of residence. We therefore conclude Sergeant Deras had a sufficient
basis for the extended stop, even in the absence of corroboration of the informant’s tip.
   C. Defendant Did Not Give Valid Consent for the Search of His Car
       After defendant gave officers consent to search his person, they found an object in
his pocket which they believed to be crack cocaine. On this basis, officers placed
defendant in handcuffs and seated him on the sidewalk. After Sergeant Deras examined
the object in the light of his patrol car, he determined the object was a diamond.
Nonetheless, the officers kept defendant in handcuffs, continued to question him, and
requested consent to search his car.
       Defendant contends he was under de facto arrest when police requested consent to
search his car.2 Because the police lacked probable cause to keep him under arrest, he
contends the arrest was unlawful. Therefore, he argues, he did not provide valid consent,
and the car search was illegal. The Attorney General contends defendant was lawfully
under arrest as part of a valid traffic enforcement stop because the police had probable
cause to believe he was speeding. In the alternative, the Attorney General argues that the
officers’ use of handcuffs did not convert the detention into an unlawful arrest.
       Defendant’s argument requires us to resolve three issues: First, whether officers
had placed him under de facto arrest; second, whether the arrest was unlawful at the time




       2
         At oral argument, defendant characterized the “de facto arrest” as an “intolerably
intrusive detention” rather than an arrest. Regardless of the nomenclature used, we will
analyze the specific facts of this case under applicable case law to determine whether
probable cause was necessary to justify the degree of intrusion imposed during the
handcuffing.
                                            10
they requested his consent; and third, whether his consent was invalid as a consequence.
We answer all three questions in the affirmative.

       1. Defendant Was Under Arrest When Officers Requested Consent to Search His
          Car
       Defendant, relying on In re Antonio B. (2008) 166 Cal.App.4th 435 (Antonio B.),
argues that police placed him under de facto arrest when they put handcuffs on him and
seated him on the curb of the sidewalk. We agree.
       “ ‘A seizure occurs whenever a police officer “by means of physical force or show
of authority” restrains the liberty of a person to walk away.’ ” (People v. Celis (2004)
33 Cal.4th 667, 673 (Celis).) A seizure can be an arrest or a detention. (Antonio B.,
supra, 166 Cal.App.4th at pp. 439-440.) A warrantless arrest must be supported by
probable cause. (Celis, at p. 673.) “Probable cause exists when the facts known to the
arresting officer would persuade someone of ‘reasonable caution’ that the person to be
arrested has committed a crime.” (Ibid.)
       In Antonio B., the Court of Appeal for the Second District considered the question
of when the use of handcuffs elevates a detention to the level of a formal arrest requiring
probable cause. The court first noted that “handcuffing a suspect for a short period does
not necessarily transform a detention into an arrest.” (Antonio B., supra, 166
Cal.App.4th at p. 441, citing Celis, supra, 33 Cal.4th at p. 675; cf. Dunaway v. New York
(1979) 442 U.S. 200, 215 [handcuffs considered among the “trappings of a technical
formal arrest”]; United States v. Newton (2d Cir. 2004) 369 F.3d 659, 676 [handcuffs are
generally recognized as a hallmark of a formal arrest, citing cases].) The court then
recognized the general rule as set forth in Celis: “The issue is whether the use of
handcuffs during a detention was reasonably necessary under all of the circumstances of
the detention. [Citations.] We look to ‘the facts known to the officers in determining
whether their actions went beyond those necessary to effectuate the purpose of the stop,
that is, to quickly dispel or confirm police suspicions of criminal activity.’ ” (Antonio B.,


                                             11
at p. 441, quoting Celis, at pp. 675-676.) In a survey of the case law, the court identified
two predominant factors that most courts consider in deciding whether handcuffing a
detainee converts a detention into an arrest. The court concluded that handcuffing a
detainee does not result in an arrest when, “at the time of the detention, the officer had a
reasonable basis to believe the detainee presented a physical threat to the officer or would
flee.” (Antonio B., at p. 442.)
       Applying these principles, we conclude that neither physical threats nor the threat
of escape justified the handcuffing of defendant absent probable cause. Defendant—a
50-year-old man with a medium-to-heavy build—was peaceful and compliant at all times
during the stop. (Cf. Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071,
1077 [detainee’s belligerence and refusal to obey orders supported finding that
handcuffing him did not constitute arrest].) The police outnumbered him three-to-one,
and once removed from his car, he presented little threat of escape. (Cf. Celis, supra, 33
Cal.4th at p. 676 [no arrest where police officer drew gun and handcuffed detainee, given
that suspects outnumbered police two-to-one and presented threat of fleeing]; United
States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289-1290 [no arrest where officer
handcuffed two men, one of whom was preparing to flee].) Officers had already searched
defendant’s person and found no weapons. (Cf. United States v. Alvarez (9th Cir. 1990)
899 F.2d 833, 839 [no arrest where officers had strong reason to believe detainee was
armed].) And while standing on the sidewalk, defendant was too far from the car to reach
for any weapons in it. Finally, as to Sergeant Deras’ statement to defendant that he was
not under arrest, this did not negate the fact that defendant was physically restrained by
handcuffs. (United States v. Newton, supra, 369 F.3d at p. 676 [detainee in handcuffs
was under arrest despite police advisement that he was not under arrest]; see also People
v. Aguilera (1996) 51 Cal.App.4th 1151, 1163 [defendant was in custody despite officer’s
statement that he was not in custody]; Seals v. United States (D.C. Cir. 1963) 325 F.2d



                                             12
1006, 1008-1009 [defendant interrogated at police station was under arrest
notwithstanding officer’s statement that defendant was not under arrest].)
       Based on these facts, defendant was under de facto arrest when officers
handcuffed him, requiring probable cause for the arrest. As confirmed by Sergeant
Deras’ testimony, the police based their arrest on the belief that defendant was in
possession of crack cocaine. Although the object in defendant’s pocket was actually a
diamond, probable cause for an arrest may be supported by a reasonable, good faith
mistake of fact. (See Hill v. California (1971) 401 U.S. 797, 802; People v. Hill (1968)
69 Cal.2d 550, 553; Weinstein v. City of Eugene (9th Cir. 2009) 337 Fed.Appx. 700, 701;
see also Pen. Code, § 836, subd. (a)(3).) Defendant does not claim—and nothing in the
record shows—that the officers lacked a good faith belief that the object was crack
cocaine when they first removed the diamond from defendant’s pocket. We thus
conclude defendant was lawfully arrested when police initially handcuffed him.

       2. Probable Cause for the Arrest Ceased to Exist When Police Discovered the
          Object in Defendant’s Pocket Was Not Contraband
       Defendant argues he was no longer lawfully under arrest once police determined
the object in his pocket was not crack cocaine, but a diamond. We agree with defendant
that, once police realized the object was a diamond, they lacked probable cause to keep
him under arrest for drug possession. The only other basis for the arrest––a vague and
uncorroborated claim by an informant––did not constitute probable cause. (People v.
Ramey (1976) 16 Cal.3d 263, 269 [probable cause not established by conclusory
information]; People v. French (2011) 201 Cal.App.4th 1307, 1318 [conclusory
statements by confidential informants insufficient to support a warrant]; cf. Illinois v.
Gates (1983) 462 U.S. 213, 244 [probable cause supported by totality of the
circumstances where details of informant’s tip were corroborated by police
investigation].) Nor did the civilian’s observation of a “furtive movement” provide
probable cause, as the movement itself lacked sufficient criminal connotation. (Gallik v.


                                             13
Superior Court (1971) 5 Cal.3d 855, 859 [to constitute probable cause, a furtive gesture
must be invested with guilty significance]; People v. Superior Court (Kiefer) (1970)
3 Cal.3d 807, 823 [mere furtive movement of occupant of vehicle being chased by officer
for traffic violation insufficient to establish probable cause]; People v. Lathan (1974)
38 Cal.App.3d 911, 916 [furtive movements must be such as to have a criminal
connotation].)
       Neither party cites any authority addressing the question of whether, or for how
long, police may constitutionally keep a person under arrest without a warrant once they
discover an arrest is based on a mistake of fact. Because we are aware of no published
California opinion that address this specific question, we look to the laws of other
jurisdictions.
       The common law has long required police to release an arrestee upon learning
beyond a reasonable doubt that a warrantless arrest was based on error. “An arrest of
another without a warrant is often privileged because the actor reasonably suspects that
the other whom he [or she] arrests has committed a felony. So too, the actor’s privilege
to maintain the custody of one whom he [or she] has arrested on suspicion of felony
extends no further than to maintain the custody while he [or she] still entertains such a
suspicion. If the actor, whether a private person or a police officer, has arrested another
without a warrant on reasonable suspicion of felony, and has ascertained beyond a
reasonable doubt that the suspicion upon which the privilege to arrest is based is
unfounded, he [or she] is no longer privileged to keep the other in custody and must
release him [or her] . . . .” (Restatement of Torts, 2d § 134, Comment f.)
       Several federal courts have adopted the aforementioned common law rule in
resolving lawsuits for civil rights violations—including those with constitutional claims.
(Duckett v. City of Cedar Park, Tex. (5th Cir. 1992) 950 F.2d 272, 279 [a plaintiff may
state a constitutional claim if, after the police officers make an arrest pursuant to a
warrant, police officers fail to release the arrestee after they receive information upon

                                              14
which to conclude beyond a reasonable doubt that such warrant had been withdrawn];
McConney v. City of Houston (5th Cir. 1989) 863 F.2d 1180, 1185 [once an officer
ascertains beyond reasonable doubt that one who has been so arrested is in fact not
intoxicated, the arrestee should be released]; Thompson v. Olson (1st Cir. 1986) 798 F.2d
552, 556 [following a legal warrantless arrest based on probable cause, an affirmative
duty to release arises if the arresting officer ascertains beyond a reasonable doubt that the
basis for the probable cause is unfounded]; Babers v. City of Tallassee, Ala. (M.D. Ala.
2001) 152 F.Supp.2d 1298, 1308-1309 [following a lawful warrantless arrest, a police
officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable
doubt that the probable cause which formed the basis for the arrest was unfounded]; see
also Gay v. Wall (4th Cir. 1985) 761 F.2d 175, 179 [opining that deprivation of liberty
after police knew defendant was innocent may constitute federal civil rights violation];
but see Panagoulakos v. Yazzie (10th Cir. 2013) 741 F.3d 1126, 1131[officer enjoyed
qualified immunity because existing law did not clearly establish the duty to release
arrestee].)
       The aforementioned cases concerned civil rights lawsuits, not the seizure of
evidence during a warrantless search. And police in these cases typically kept the
detainees under arrest for a substantial period of time, whereas defendant here had only
been handcuffed for two or three minutes when officers requested his consent for the car
search. Thus, we do not infer from these cases that the officers had a duty to release
defendant within seconds of discovering the object was a diamond. Nonetheless, once
probable cause for the arrest ceased to exist, the police incurred a duty to release
defendant within a reasonable amount of time. But rather than remove his handcuffs,
they continued to question him while he was unlawfully arrested. The trial court below
concluded that an “insignificant” amount of time had passed between the officers’
discovery that the object was a diamond and their request for consent to search



                                             15
defendant’s car.3 But regardless of exactly when the police incurred a duty to release
defendant, they lacked probable cause for the arrest when they requested consent to
search defendant’s car. In other words, the issue is not merely the amount of time that
passed. Instead, the question is whether the fact that defendant was unlawfully under
arrest invalidated his consent because he did not give it voluntarily.
       “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of
duress or coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.)
But “[t]he rule is clearly established that consent induced by an illegal search or arrest is
not voluntary, and that if the accused consents immediately following an illegal entry or
search, his assent is not voluntary because it is inseparable from the unlawful conduct of
the officers.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251, italics added;
People v. Johnson (1968) 68 Cal.2d 629, 632; People v. Haven (1963) 59 Cal.2d 713,
719.) The condition of an unlawful arrest renders consent involuntary because such
consent is necessarily “ ‘induced by compulsion, intimidation, oppressive circumstances,
or other similar factors inherent in the situation which make that consent less than an act
of the free will.’ ” (See People v. Lawler (1973) 9 Cal.3d 156, 164, quoting and
distinguishing Mann v. Superior Court (1970) 3 Cal.3d 1, 8.) A lengthy passage of time,
while likely compounding the compulsory nature of an unlawful arrest, is not a necessary
factor in this analysis. Based on the totality of the circumstances, we hold defendant did
not voluntarily consent to the search of his car.
       Relying on Atwater, supra, the Attorney General argues that, even if the police did
not have probable cause for defendant’s arrest based on the diamond found in his pocket,
the arrest was not unlawful because police could have arrested defendant for the speeding
violation. But this is not the law in California. For most traffic infractions, officers may


       3
         Because the trial court’s conclusion necessarily implied the search was
constitutional, we consider this conclusion a matter of law, not a factual finding.
                                              16
not make a custodial arrest unless some other condition arises—e.g., the motorist fails to
produce a driver’s license or other identification. (See People v. McKay (2002)
27 Cal.4th 601, 605 (McKay); People v. McGaughran (1979) 25 Cal.3d 577, 583, citing
Veh. Code, §§ 40301-40303, 40504 [regulating release upon a promise to appear for a
traffic infraction].) For Fourth Amendment purposes, the California Supreme Court has
held that application of the exclusionary rule does not depend on whether the officer
complies with these arrest procedures. (McKay, at p. 611.) Nonetheless, Atwater does
not authorize police to arrest a driver for an offense unsupported by probable cause
merely because the driver is stopped for speeding.
       In Atwater, supra, 532 U.S. 318, police arrested a driver for violating a seatbelt
law. The arrest was supported by probable cause, and state law in Texas authorized a
warrantless arrest for such violations. The United States Supreme Court held that the
arrest did not violate the Fourth Amendment. (Id. at p. 354.) Looking to historical
common law, the court concluded that nothing in the traditional protections against
search and seizure prohibited police from making arrests for such minor offenses.
Atwater thereby establishes that the police officers here could have arrested defendant for
speeding without violating the Fourth Amendment. But the officers did not arrest
defendant for speeding.
       The Attorney General argues that it makes no difference why the police arrested
defendant because the officers’ subjective intent is irrelevant for Fourth Amendment
purposes under Whren v. United States (1996) 517 U.S. 806 (Whren). Combining Whren
and Atwater together, the Attorney General argues that as long as the police could have
constitutionally arrested defendant for speeding, it does not matter that they arrested him
for some other unrelated offense. For example, in Devenpeck v. Alford (2004) 543 U.S.
146 (Devenpeck), police stopped a motorist suspected of impersonating a police officer.
In the course of the stop, police discovered the motorist was recording the stop on a tape
recorder. The police arrested the motorist for violating state privacy laws by recording

                                             17
the stop. After a trial court ruled that the tape recording was legal under state privacy
laws, the motorist sued the police for unlawful arrest and imprisonment.
       Applying Whren, the United States Supreme Court held the arrest was
constitutional because the facts could have established probable cause that the motorist
was impersonating a police officer, even if that is not why police arrested the motorist.
The court held, “Our cases make clear that an arresting officer’s state of mind (except for
the facts that he knows) is irrelevant to the existence of probable cause. [Citations.] That
is to say, his subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause. As we have repeatedly explained, ‘ “the
fact that the officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer’s action does not invalidate the action
taken as long as the circumstances, viewed objectively, justify that action.” ’ ”
(Devenpeck, supra, at p. 153, quoting Whren, at p. 813.)
       As the court noted in Devenpeck, we consider a police officer’s state of mind “for
the facts that he knows” in formulating probable cause. (Devenpeck, supra, at p. 153.)
But nothing in Whren or Devenpeck suggests that police may arrest a person for an
offense when they know the facts before them do not support probable cause that a
defendant has committed an offense. To the contrary, the police officers in Whren and
Devenpeck clearly held objectively reasonable good faith beliefs in the facts supporting
probable cause for the offenses for which they arrested the defendants. These cases are in
accord with the longstanding “good faith exception” to the Fourth Amendment’s warrant
requirement. (See, e.g., United States v. Leon (1984) 468 U.S. 897, 919 [if the purpose of
the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a
search should be suppressed only if the law enforcement officer had knowledge, or may
properly be charged with knowledge, that the search was unconstitutional].)
       By contrast, once the police here discovered that the object in defendant’s pocket
was a diamond, the facts known by the officers no longer supported his arrest for drug

                                             18
possession. And nothing in the record suggests they held—or reasonably could have
held—a good faith belief to the contrary. Accordingly, we do not believe the Attorney
General’s reliance on Atwater, Whren, and Devenpeck supports the search of defendant’s
car. This view would allow the police to search and arrest a motorist for any offense—
even where officers know there is no evidence that any other offense has been
committed—so long as there is probable cause to support a traffic violation (e.g.,
speeding). We disagree with this view.
       The United States Supreme Court underscored this principle in its most recent
traffic stop case, Rodriguez, supra, 135 S.Ct. 1609. In that case, a police officer lawfully
stopped Rodriguez for driving on a highway shoulder, a violation of state law. After
checking his driver’s license, the officer issued a warning ticket to Rodriguez. But
instead of releasing him, the officer continued to detain him until another officer arrived
with a drug-sniffing dog. The dog alerted to the presence of drugs, whereupon police
searched the car and found methamphetamine. The Supreme Court held the search
unconstitutional in the absence of reasonable suspicion to support the dog search. (Id. at
p. 1616.) Like the officers here, the police in Rodriguez could have arrested and searched
Rodriguez based on the traffic violation—but they did not. Instead, they issued him a
warning ticket. Having done so, their subsequent search for drugs could not be justified
based on probable cause for the traffic violation. This result makes clear that police may
not use probable cause for a traffic violation to justify an arrest for an unrelated offense
where, under the facts known to police, they have no probable cause supporting the
unrelated offense. (Cf. id. at pp. 1618-1622 [citing Atwater and Whren] (dis. opn. of
Thomas, J.).)
       For these reasons, we hold the search of defendant’s car violated the Fourth
Amendment. Defendant did not provide valid consent for the search, and the prosecution
failed to show the search was valid under any other exception to the Fourth Amendment’s
warrant requirement. Accordingly, we will reverse the judgment and remand with

                                              19
instructions to grant the motion to suppress the evidence seized in the car search. As to
the evidence seized in the warrant search of defendant’s home, a hearing is required to
determine the validity of the warrant absent the evidence seized in the car search.
                                     III.   DISPOSITION
       The judgment is reversed, the conviction is vacated, and the matter is remanded.
On remand, the trial court shall vacate its order denying defendant’s motion to suppress
the evidence seized in the car search and shall enter a new order granting that motion. As
to evidence seized in the warrant search of defendant’s home, the trial court shall hold a
hearing to determine the validity of the warrant absent the evidence seized from
defendant’s car.




                                            20
                   Márquez, J.




WE CONCUR:




 Rushing, P.J.




 Grover, J.




People v. Espino
No. H040942
Trial Court:                             Santa Clara County
                                         Superior Court No.: F1241967

Trial Judge:                             The Honorable Edward F. Lee



Attorney for Defendant and Appellant     Rudolph J. Alejo
Freddy Espino:                           under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A. Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Acting Senior Assistant Attorney
                                         General

                                         Eric D. Share,
                                         Supervising Deputy Attorney General

                                         Ronald E. Niver,
                                         Deputy Attorney General

                                         Michael J. Mongan,
                                         Deputy Attorney General




People v. Espino
H040942
