Filed 1/14/15 P. v. Ricks CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066834
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. BF142634A &
                   v.                                                               BF144431A)

KENNETH McCARTY RICKS,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
         Monique Q. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Franson, J.
                                      INTRODUCTION
       This is an appeal from two cases.1 On October 25, 2012, the Kern County District
Attorney filed an information in case No. BF144431A charging defendant Kenneth
McCarty Ricks in count 1 with possessing cocaine base for sale (Health & Saf. Code,
§ 11351.5) and in count 2 with transporting cocaine base (Health & Saf. Code, § 11352).
As to both counts, the information alleged that defendant had been previously convicted
of two strike felonies. (Pen. Code, §§ 667, subds. (c)–(j) & 1170.12, subds. (a)–(e).)2
Defendant pled not guilty to all counts and denied all allegations.
       On November 21, 2012, defendant filed a motion to suppress evidence pursuant to
section 1538.5. The prosecutor filed a written opposition. On December 11, 2012, the
court denied the motion after receiving evidence and listening to oral arguments from
both parties.
       On December 14, 2012, defendant withdrew his pleas of not guilty and pled no
contest to count 1 and admitted the two strike priors attached to count 1. The prosecutor
dismissed count 2 and the respective allegations. Defendant was sentenced concurrently
on this present case and in Kern County Superior Court case No. BF142634A.3 The
court denied probation and sentenced defendant to a prison term of six years in case

1     By order dated July 19, 2013, this court construed defendant’s notice of appeal filed on
March 7, 2013, to be an appeal from the judgment entered in Kern County Superior Court case
No. BF142634A as well as Kern County Superior Court case No. BF144431A.
2      All future statutory references are to the Penal Code unless otherwise noted.
3      All future references to case numbers are to Kern County Superior Court case numbers.
        In companion case No. BF142634A, defendant pled no contest on July 3, 2012, to one
felony charge of criminal threats (§ 422) and one felony charge of entering an inhabited dwelling
with intent to commit a felony (§ 460, subd. (a)). On August 1, 2012, the court sentenced
defendant in case No. BF142634A to one year in jail and admitted him to probation for three
years. On October 11, 2012, defendant was arraigned on a violation of probation based on the
conduct charged in case No. BF144431A. After his motion to suppress evidence was denied in
case No. BF144421A, defendant admitted he violated probation in case No. BF142634A in
conjunction with his no contest plea in case No. BF144431A.



                                               2.
No. BF144431A. Defendant was sentenced to a six-year term in case No. BF142634A,
which was ordered to run concurrent with defendant’s sentence in case No. BF144431A.
       On appeal, defendant contends the trial court erred in denying his motion to
suppress because the search and seizure were the result of an unlawful detention. We
hold the officer detained defendant without reasonable suspicion as required under the
Fourth Amendment. Accordingly, we reverse.
                              FACTUAL BACKGROUND
       The facts below are taken from the December 11, 2013, suppression hearing in
case No. BF144421A at which only Bakersfield Police Officer John Otterness testified.
       On October 6, 2012, at approximately 10:20 p.m., Otterness was on patrol in a
marked patrol vehicle with his partner, Officer Hernandez. It was dark. They were
patrolling the 3400 block of Q Street in Bakersfield when they observed defendant, who
was walking in the parking lot of a Fastrip convenience store from the direction of the
store. The Fastrip was open for business.
       Otterness had been in this area “[a]t least 40” times prior to his contact with
defendant. During those previous occasions, he had dealt with narcotics crimes. He
testified he had contacted street gang members in the area and was able to identify a lot
of gang members. He believed individuals involved in narcotics crimes and gangs are
often armed.
       Otterness made eye contact with defendant, who placed his left hand inside his left
pocket. The officers pulled into the parking lot without activating their lights or siren.
Otterness did not see defendant make any throwing motions, and defendant did not flee
when seeing the officers.
       The officers parked their vehicle approximately “ten feet or so” from defendant
inside the parking lot. Otterness did not see anyone else in the vicinity.
       Otterness initially testified defendant was wearing “oversized baggy clothing,” but
on cross-examination he agreed defendant wore shorts and a T-shirt in his booking

                                             3.
photograph and Otterness could not remember if defendant wore a sweatshirt at the time
of the incident.
       Otterness exited his vehicle and defendant looked over his shoulder toward
Otterness while keeping his hand in his pocket. Both officers were in uniform. Otterness
provided the following testimony:

              “[OTTERNESS:] I exited my vehicle and contacted [defendant].

             “[PROSECUTOR:] What did you do after you contacted the
       defendant?

             “[OTTERNESS:] I asked him if he could please remove his hand
       from his pocket for officer safety.

              “[PROSECUTOR:] What did he do after you asked him that?

               “[OTTERNESS:] He was nonresponsive and he continued to leave
       his left hand in his pocket.

              “[PROSECUTOR:] What did you do at that point?

              “[OTTERNESS:] I asked him to remove his hand from his pocket,
       and he did not.

             “[PROSECUTOR:] And, after you asked him the second time, what
       did you do[?]

               “[OTTERNESS:] I began to approach [defendant]. And at that
       point I placed him—removed his hand and placed him in a standing
       modified search position. And at that point I asked him if he was on
       probation, and he said he was.”
       Otterness conducted a search of defendant’s person because he was afraid
defendant might have a weapon. During this time, Hernandez was standing
approximately four or five feet from Otterness.
       Otterness patted over defendant’s clothing and he felt a hard item in defendant’s
left pocket, which he believed might have been a knife. Otterness reached into the pocket
and removed the hard item, which was a “bluetooth” earpiece. Attached to the earpiece



                                            4.
was a baggie containing an “off white rock type substance,” which Otterness suspected
was cocaine base.
       On cross-examination, Otterness testified he had never contacted defendant before
at that location. Otterness clarified his interactions with defendant as follows:

             “[DEFENSE COUNSEL:] All right. When you got out, you
       approached [defendant]. Is that correct?

              “[OTTERNESS:] Yes.

             “[DEFENSE COUNSEL:] And [defendant] put his hand in his
       pocket?

              “[OTTERNESS:] He had already put his hand in his pocket prior to
       us pulling into the Fastrip parking lot.

            “[DEFENSE COUNSEL:] Okay. So he actually put his hand in
       his—was that his left hand or right hand?

              “[OTTERNESS:] It was his left hand in his left pocket.

               “[DEFENSE COUNSEL:] Okay. So he had already put his hand in
       the left hand pocket even before you drove into the parking lot. Is that
       correct?

              “[OTTERNESS:] Yes.”
       A short time later, the following occurred:

               “[DEFENSE COUNSEL:] Okay. So [defendant is] walking toward
       the street and then you pull ten feet from here?

              “[OTTERNESS:] Approximately.

             “[DEFENSE COUNSEL:] All right. You then approached him.
       Correct?

              “[OTTERNESS:] Yes.

             “[DEFENSE COUNSEL:] Okay. And you told him once take your
       hand out of your pocket. Correct?

              “[OTTERNESS:] As I approached him, we had already made eye
       contact prior to pulling in. So once I got out he kind of looked over his

                                             5.
shoulder and his hand was still in his pocket, and he turned around to me.
And at that point I asked him if he could remove his hand from his pocket
and—

       “[DEFENSE COUNSEL:] He didn’t do that?

       “[OTTERNESS:] No.

       “[DEFENSE COUNSEL:] And then you actually repeated it and
said remove your hand from the pocket. Correct?

      “[OTTERNESS:] I asked him if he could please remove his hand
from his pocket.”

A short time later, the following occurred:

      “[DEFENSE COUNSEL:] Okay. And that is when you approached
him and put him—I’m sorry? You said a modified—

       “[OTTERNESS:] It is called a standard modified.

       “[DEFENSE COUNSEL:] What is that?

       “[OTTERNESS:] It is basically a search position, at what point that
we have some sort of control over someone that we are searching so that we
are not vulnerable to an attack.

      “[DEFENSE COUNSEL:] And in order to put him in that position
what do you have to ask him to do or how do you ask to get him to get
himself in that position?

       “[OTTERNESS:] I put his hand in the back of his head.

        “[DEFENSE COUNSEL:] You said you put your hand on the back
of his head[?]

       “[OTTERNESS:] As I was approaching him. He wasn’t putting his
hand in back of his head. At that point I assisted [him] putting his hand
from his pocket to the back of his head.

       “[DEFENSE COUNSEL:] Just so we can take it one step at a time,
you said you put your hand to the back of his head, and he didn’t do that?

       “[OTTERNESS:] He did not.




                                     6.
             “[DEFENSE COUNSEL:] And you approached closer, and you
       physically approached him and put his hand on his head[?]

              “[OTTERNESS:] I believe so.

              “[DEFENSE COUNSEL:] And then you asked him, are you on
       probation or parole[?] Correct?

              “[OTTERNESS:] Yes.”
       Oral arguments
       Defense counsel argued a detention occurred when the officer told defendant to
remove his hand twice and then physically moved defendant’s hand to his head. Defense
counsel argued no reasonable suspicion existed for the detention.
       The trial court commented that the “whole issue is whether or not a person placing
their hand in their pocket when they see an officer and then not removing it does that give
reasonable cause for the detention?”
       The defense attorney noted defendant’s hand was in his pocket “before” the
officers “even came into the parking lot.” She argued even if defendant put his hand in
his pocket when he saw the patrol vehicle, that was not sufficient for reasonable
suspicion.
       The prosecutor argued this was a search for officer safety while the officer was
attempting to make “consensual contact” with defendant. The officer was not detaining
defendant when he walked up to him. The prosecutor maintained this was in a high
crime area with heavy narcotic and gang activity,4 and defendant did not take his hand
out of his pocket but continued to keep his hand in his pocket. The prosecutor asserted
Terry v. Ohio (1968) 392 U.S. 1 and subsequent cases applied, because the officer felt
fear for his safety so a consensual contact turned into a Terry stop.


4      Otterness testified this area had a lot of “criminal activity” and was “also known for
gangs as well as narcotics.” Defense counsel objected due to foundation, which the trial court
sustained.



                                               7.
       The court noted there was “no evidence” of any threat of officer safety. The
prosecutor argued Otterness testified that “on prior occasions he had experience with
narcotic and gang members here and that they carried weapons.” The court responded it
had no evidence that Otterness or “any member of the Bakersfield Police Department had
ever been accosted in that area.”
       After confirming with the prosecutor that Terry v. Ohio, supra, 392 U.S. 1 was
controlling, the court took a short recess to review that case. After doing so, the court
stated: “I’ve now had a chance to review Terry versus Ohio and based thereon and the
facts that are presented, the Court is going to deny the motion. [¶] I think that the
detention was, in fact, justified, and therefore the steps have proceeded from and
thereafter were justified.”
                                       DISCUSSION
       A.       Standard of review
       The Fourth Amendment of the federal Constitution requires state and federal
courts to exclude evidence obtained from unreasonable government searches and
seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5 allows a
defendant to move to suppress evidence obtained in an improper seizure. (§ 1538.5.)
       “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
independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
       There are three broad categories of police contact with individuals: a consensual
encounter resulting in no restraints of liberty; a detention, which is classified as a seizure
“strictly limited in duration, scope, and purpose;” or a formal arrest (or comparable
restraint) of the person’s liberty. (In re Manuel G. (1997) 16 Cal.4th 805, 821
(Manuel G.).)

                                              8.
       A detention occurs when, under the totality of the circumstances, a reasonable
person would have believed he or she was not free to leave. (United States v. Mendenhall
(1980) 446 U.S. 544, 554.) A detention does not occur when an officer “merely
approaches an individual on the street and asks a few questions. [Citation.] As long as a
reasonable person would feel free to disregard the police and go about his or her business,
the encounter is consensual” and the officer does not need reasonable suspicion.
(Manuel G., supra, 16 Cal.4th at p. 821.) A seizure will only occur when the officer
restrains the person’s liberty through a show of authority or physical force. (Ibid.)
       “Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.]
Unlike detentions, they require no articulable suspicion that the person has committed or
is about to commit a crime. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.) An
officer does not need to have a reasonable suspicion in order to ask questions or request
identification. (INS v. Delgado (1984) 466 U.S. 210, 216; People v. Lopez (1989) 212
Cal.App.3d 289, 291.)
       The prosecution bears a heavy burden to show proper justification for a search and
seizure in the absence of a warrant, an arrest, or a consent to search. (People v. Scott
(1976) 16 Cal.3d 242, 249.)
       B.     Analysis
       Here, defendant contends a detention occurred, triggering Fourth Amendment
protection, based on how the officers’ approached him and the use of verbal instructions.
Defendant principally relies on People v. Garry (2007) 156 Cal.App.4th 1100 for the
proposition that Otterness’s verbal instructions for defendant to remove his hand from his
pocket, coupled with the proximity of where the officers parked before speaking with
defendant, established a detention.
       Respondent argues the “initial contact” between Otterness and defendant was a
“consensual encounter” not triggering Fourth Amendment protection. Respondent relies
on People v. Franklin (1987) 192 Cal.App.3d 935 (Franklin) and In re Frank V. (1991)

                                             9.
233 Cal.App.3d 1232 (Frank V.) to establish Otterness’s verbal instructions for defendant
to remove his hand from his pocket was an insufficient “show of authority” to create a
detention.
       We need not analyze or determine whether the officers’ initial actions, including
Otterness’s verbal instructions, created a detention because Otterness removed
defendant’s hand and placed him in a standing, modified search position with defendant’s
hand at the back of his head. When Otterness physically controlled defendant, a seizure
occurred because defendant’s liberty was restrained through physical force and a show of
authority. (Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16; accord, Manuel G., supra, 16
Cal.4th at p. 821; People v. Souza (1994) 9 Cal.4th 224, 229.) As such, a detention
occurred whether or not the prior, brief “interaction” between Otterness and defendant
was consensual. Because defendant was seized, the issue is whether the officer was
justified in doing so.
       Officers may temporarily detain a person so long as it is based on “some objective
manifestation” that criminal activity is occurring and the person detained is involved.
(United States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2; People v. Souza, supra, 9
Cal.4th at p. 230; Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [a detention
requires “‘an articulable suspicion that a person has committed or is about to commit a
crime’”].) The detaining officer must “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, supra, at
p. 231.) We focus on the totality of the circumstances in assessing whether the
particularized and objective facts known to the police provided reasonable cause to detain
defendant. (Id. at p. 238.)
       “The idea that an assessment of the whole picture must yield a particularized
suspicion contains two elements, each of which must be present before a stop is
permissible. First, the assessment must be based upon all of the circumstances. The

                                            10.
analysis proceeds with various objective observations, information from police reports, if
such are available, and consideration of the modes or patterns of operation of certain
kinds of lawbreakers. From these data, a trained officer draws inferences and makes
deductions—inferences and deductions that might well elude an untrained person.”
(United States v. Cortez, supra, 449 U.S. at p. 418.)
       “The second element contained in the idea that an assessment of the whole picture
must yield a particularized suspicion is the concept that the process just described must
raise a suspicion that the particular individual being stopped is engaged in wrongdoing.”
(United States v. Cortez, supra, 449 U.S. at p. 418.)
       Here, defendant was walking through the parking lot of an open Fastrip while the
officers were driving on the street. Defendant made eye contact with Otterness and put
his hand in his pocket. Otterness did not see defendant make any throwing motions, and
defendant did not flee when seeing the officers. Although Otterness knew the area and
knew “a lot of street gang members” living in the area, Otterness did not link defendant
to any street gang or to gang activity. Indeed, Otterness testified he had never contacted
defendant in that area.
       Otterness did not articulate specific facts that would cause a reasonable officer to
suspect defendant was involved in criminal activity or that such activity had just occurred
or was about to occur. There is nothing in the record to indicate the officers had received
any report of gang activity in that area or a report that a crime had been committed in the
area that night. There is no evidence the officers observed any criminal activity that night
prior to contacting defendant. There is no evidence defendant acted in a furtive manner
or attempted to avoid the officers.
       Moreover, as the trial court noted, there was no evidence the officers’ safety was
at risk. There is no evidence defendant made any threatening movements towards the
officers. Even if defendant was wearing “baggy clothing” at night in a high crime area,
as Otterness stated, that does not reasonably support a suspicion that defendant was

                                            11.
armed and dangerous. (People v. Roth (1990) 219 Cal.App.3d 211, 213, 215 [detention
was illegal of suspect wearing “heavy, bulky jacket or two jackets” where officer could
not describe any criminal activity].) Further, a nonspecific belief a person potentially
may be armed is insufficient to justify a Fourth Amendment search. (People v. Dickey
(1994) 21 Cal.App.4th 952, 956.) The facts do not withstand Fourth Amendment
scrutiny.
       Respondent argues the issue is not whether the officer had reasonable suspicion
that defendant was involved in criminal activity, but, rather, whether the patdown was
justified for officer safety, citing Terry v. Ohio, supra, 392 U.S. at page 27.
Respondent’s arguments, however, fail to address or discuss the seizure which occurred
prior to the patdown, and whether that physical detainment was constitutionally justified.
As discussed above, it was not. Moreover, Terry v. Ohio does not support respondent’s
position. In that case, the United States Supreme Court made it clear an officer may only
detain a person if the officer first has observed “unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and presently dangerous, where
in the course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against the person from whom
they were taken.” (Terry v. Ohio, supra, at pp. 30–31.)
       The officer in Terry v. Ohio was able to give reasonable articulable facts justifying
his seizure and patdown based on the suspects’ actions that reasonably showed they were
checking businesses for a daylight robbery. (Terry v. Ohio, supra, 392 U.S. at p. 28.)

                                              12.
Here, respondent has failed to point to any reasonable facts justifying defendant’s
detention. Our independent review of the record confirms that no such facts exist.5
       We are likewise unpersuaded by respondent’s reliance on Franklin, supra, 192
Cal.App.3d 935 and Frank V., supra, 233 Cal.App.3d 1232, authorities which respondent
uses to argue a consensual encounter occurred here.
       In Franklin, authorities found a body in a motel room. The victim had been shot
twice and his pockets were turned inside out. A search of the room showed a .22-caliber
shell casing and drug paraphernalia. About 20 or 30 minutes before the discovery of the
body, a police officer was patrolling in an area where vandalism, robbery and narcotics
trafficking were common. The officer spotted the defendant, who was walking about
one-half block away from the homicide scene. The defendant was wearing a full-length
camouflage jacket, which the officer thought was odd on a warm summer evening. The
officer shone his patrol car spotlight on the defendant. (Franklin, supra, 192 Cal.App.3d
at p. 938.)
       The officer noticed the defendant was carrying “a white cloth-like object,” which
he seemed to try to conceal from the light. The officer stopped his vehicle directly
behind the defendant and radioed his position. While the officer was on the radio, the
defendant approached the patrol car on the passenger side. When the officer exited the
vehicle, the defendant came toward him and they met in the area of the headlights. The
defendant kept asking, “‘What’s going on?’” (Franklin, supra, 192 Cal.App.3d at
p. 938.)




5       Defendant’s probationary status also does not justify the detention because Otterness did
not inquire about defendant’s probation status until after he seized defendant. Otterness did not
testify he was aware of defendant’s probation status before the encounter. “[A] search cannot be
validated by the discovery, after the fact, that the defendant was subject to a probation or parole
search condition.” (People v. Brendlin (2008) 45 Cal.4th 262, 272.)



                                                13.
       The officer noticed the defendant was sweaty and seemed “‘real jittery, hyper.’”
The officer asked the defendant to remove his hands from his pockets and, when the
defendant did so, the officer saw what appeared to be a film of blood on his hands. The
officer also saw a visible cork-stopped vial containing a white powdery substance in his
pocket. (Franklin, supra, 192 Cal.App.3d at p. 938.) The defendant put his hands back
in his pockets and, when told to remove them again, the defendant fled. The officer
chased and tackled him. A vial containing white powder, a .22-caliber semiautomatic
pistol, an unspent .22-caliber cartridge and another vial were discovered in areas where
the officer spoke with the defendant and later struggled with him. At the police station,
belongings of the victim were discovered in the defendant’s possession. The trial court
denied the defendant’s motion to suppress.
       On appeal, this court held a detention did not occur between the time the officer
first spotted the defendant walking on the street and when the defendant removed his
hands from his pockets. The appellate court stated the “spotlighting” of the defendant
with the car light, by itself, did not represent a sufficient “show of authority” so that the
defendant did not feel free to leave. (Franklin, supra, 192 Cal.App.3d at p. 940.) The
Franklin court also did not find the officer’s act of pulling his vehicle to the curb behind
the defendant constituted an “‘additional overt action’” that would convince a reasonable
man he was not free to leave. Finally, the Franklin court rejected the argument that the
officer’s request for the defendant to remove his hands from his pockets created a
detention. (Id. at p. 942.) As such, the Franklin court did not agree the defendant was
improperly detained before he fled and was tackled.
       Here, Franklin does not alter the constitutional requirement of reasonable
suspicion to justify the seizure and patdown of defendant. As noted earlier, it is
immaterial whether or not Otterness had a “consensual encounter” with defendant prior to
physically restraining him. As such, Franklin is inapposite to our discussion and does not
establish a valid Fourth Amendment seizure.

                                              14.
       We are also unpersuaded by Frank V., supra, 233 Cal.App.3d 1232, in which two
officers were dispatched to investigate a report of reckless motorcycle driving on a street
in an active gang area. The officers arrived at that location and noticed a motorcycle with
two riders pulling away from a curb in front of a house known for gang activity. The
officers made a U-turn with the intention of making a traffic stop. As soon as they made
the turn, the motorcycle pulled to the curb even though the officers never activated their
overhead lights or sirens. (Frank V., supra, at p. 1237.)
       The officers approached the motorcycle and the driver held out an apparent
driver’s license in his left hand while the passenger (the defendant) looked straight ahead
with both hands in the front pockets of a bulky leather jacket. The defendant was ordered
to remove his hands from his pockets, which he did, but he then tried to put them back
inside his pockets. The defendant was ordered to keep his hands out and an officer did a
patdown search of the defendant for weapons and discovered a gun in the defendant’s
right front jacket pocket. (Frank V., supra, 233 Cal.App.3d at p. 1237.) In the trial court,
the defendant filed a motion to suppress the gun as evidence, which the court denied.
       On appeal, the Frank V. court determined the defendant was not detained prior to
the patdown search because the motorcycle driver “voluntarily pulled over to the curb
before the officers completed the U-turn or displayed any gesture of authority, such as
using overhead lights or a siren.” (Frank V., supra, 233 Cal.App.3d at pp. 1237–1238.)
Because the motorcycle was not detained, the appellate court determined the defendant
was also never detained. (Id. at p. 1238.) Moreover, the court stated the order for the
defendant to remove his hands “did not transform the consensual encounter into a
detention.” (Ibid.) The court was “sensitive to the delicate balance between Fourth
Amendment rights and a police officer’s safety.” (Ibid.) Noting it would be
unreasonable to require officers to take unnecessary risks when performing their duties,
and noting the high percentage of murders of officers that occur during traffic stops, the
Frank V. court stated it was not intrusive for the officer to order the defendant to remove

                                            15.
his hands. (Ibid.) As such, the court stated because the defendant was not initially
detained, he was not the subject of the officers’ inquiry, and he was only told to remove
his hands from his pocket, a detention did not occur. (Id. at p. 1239.)
       Here, unlike in Frank V., defendant was the subject of the officers’ inquiry.
Unlike the motorcycle driver in Frank V., defendant did not act in a manner that might
have demonstrated a voluntary consent to the police interaction. There are no facts
indicating defendant stopped, or held out identification, or spoke to the officers either
before or during the time Otterness seized him. Unlike in Frank V., defendant was
physically restrained before he was searched. Because defendant was seized, Frank V. is
distinguishable and does not provide Fourth Amendment justification for defendant’s
detention.
       Because there was no reasonable suspicion defendant had committed or was about
to commit a crime, defendant’s Fourth Amendment rights were violated when he was
seized.6 (Terry v. Ohio, supra, 392 U.S. at pp. 30–31; People v. Souza, supra, 9 Cal.4th
at p. 230; Wilson v. Superior Court, supra, 34 Cal.3d at p. 784.) Defendant’s motion to
suppress should have been granted.
                                      DISPOSITION
       The judgments are reversed in Kern County Superior Court case Nos. BF142634A
and BF144431A. Both matters are remanded to the trial court. On remand, the trial court
shall enter an order granting defendant’s motion to suppress.




6      Because the detention was improper, we do not address respondent’s contentions the
“scope of the pat-search” was proper.



                                             16.
