Filed 12/12/13 P. v. Maka CA1/2
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137604
v.
JOACHIN MAKA,                                                        (San Mateo County
                                                                     Super. Ct. No. SC077067A)
         Defendant and Appellant.

         Appellant Joachin Maka was convicted, pursuant to a plea agreement, of
possession of a loaded firearm in a public place. On appeal, he contends the trial court
erred when it denied his motion to suppress evidence because police officers did not have
reasonable suspicion to stop his car based on his briefly honking his horn as he drove past
their recently stopped car. We conclude that the prosecution failed to satisfy its burden of
proving that there was objectively reasonable suspicion for the traffic stop. We shall
therefore reverse the judgment and remand the matter to the trial court for further
proceedings.
                                      PROCEDURAL BACKGROUND
         Appellant was charged by information with one count of possession of a loaded
firearm in a public place (Pen. Code, § 25850, subd. (c)(6)).
         Appellant filed a motion to suppress evidence, pursuant to Penal Code section
1538.5 and, after a contested hearing, the trial court denied the motion.




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       On January 11, 2012, appellant pleaded no contest to the charged offense, and the
trial court suspended imposition of sentence and placed appellant on supervised probation
for three years.
       On January 14, 2013, appellant filed a notice of appeal.1
                                      DISCUSSION
       Appellant contends the trial court should have granted his motion to suppress
evidence on the ground that police lacked reasonable suspicion to stop his car after he
briefly honked his car horn.
                               A. Trial Court Background
       Atherton Police Officer David Metzger and San Mateo Police Officer Scott
Valencia, both members of the San Mateo County gang task force, were the sole
witnesses at the hearing on appellant’s motion to suppress evidence. On November 16,
2012, at about 9:00 p.m., Valencia was driving an unmarked police vehicle in which
Metzger and Foster City Police Officer Sealy were passengers. They were traveling on
Newbridge Street, a residential street in East Palo Alto, when Valencia pulled the vehicle
over to the right shoulder of the roadway. The shoulder had a sidewalk and curb, and
was intended for vehicle parking. There was room for any car traveling behind them to
drive by without moving out of its lane. It took five to ten seconds for the police vehicle
to stop moving; it had already come to a complete stop when appellant drove past and
sounded his car horn for two to three seconds.
       Both officers testified that the car traveling behind them was not affected in any
way by their vehicle pulling over to the side of the road. The driver did not have to
swerve, brake, or stop his car, and the officers did not know why he sounded the horn.
Metzger acknowledged that a driver might honk, depending on the circumstances, if he or
she believed that a passenger could “suddenly exit the [stopped] vehicle and that the door


       1
         Because the sole issue raised on appeal concerns the propriety of the trial court’s
denial of appellant’s motion to suppress evidence, the factual background will be limited
to the evidence presented at the hearing on the motion to suppress. (See Discussion,
post.)

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may possibly swing out into the roadway in front of them.” In the present situation,
however, the police vehicle was “so far off the roadway that even a door opening
wouldn’t have been out into the traffic portion of the roadway,” although it was possible
that someone could have stepped out of the police vehicle and into the lane of traffic.
       As to the reason for the driver honking the horn, Metzger believed either that the
“occupants of the vehicle may have recognized us as a police vehicle, even though our
vehicle was unmarked, and may have perhaps been in need of assistance,” or that, “if the
car was just driving by honking its horn, it would have been a violation of the Vehicle
Code.” Therefore, the officers conducted a traffic stop of the car. Appellant was in the
driver’s seat, Allan Finau (Finau) was in the front passenger’s seat, and Anthony Finau
was in the rear passenger’s seat. After the officers approached the vehicle, Metzger
spoke with Finau while Valencia spoke with appellant.
       Metzger testified that Finau could not provide identification, but gave his name
and date of birth. Based on that information, Metzger conducted a records check, which
revealed that Finau had an outstanding warrant. Metzger therefore handcuffed Finau
before attempting to confirm the warrant. He then located a photograph, through “Cal
Photo,” which confirmed that Finau was in fact the person with the outstanding warrant.
The entire warrant and photo check process took approximately five to ten minutes.
       Valencia asked appellant for his driver’s license, but appellant said he did not have
it with him. Valencia also asked if there was anything illegal in the vehicle, and appellant
said there was not. Valencia then asked if he could search the vehicle, and appellant said,
“okay.” Once appellant and the passengers were out of the car and sitting on the curb,
Valencia and Sealy searched the car.2 Sealy found a semiautomatic handgun under the
front passenger seat. Appellant and Anthony Finau were then placed in handcuffs, for
safety reasons. Metzger informed appellant that Finau had been arrested for possession
of a handgun. Appellant asked, “ ‘what if it’s not his?’ ” Metzger told him that “it
doesn’t matter if it’s not his. It was located under his seat.” Appellant then said, “ ‘fuck

       2
         While the other two officers searched the car, Metzger was checking Cal Photo
to confirm the identity of Finau.

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it; it’s mine.’ ” At that point, Metzger read appellant his Miranda rights, appellant gave a
statement, and Metzger arrested him. Metzger estimated that the total time that elapsed
between the traffic stop and appellant’s arrest was approximately 15 minutes.
       At the conclusion of the hearing, the trial court denied the motion to suppress,
explaining: “Based on the totality of the circumstances and the evidence presented in this
hearing, the Court will find that the traffic stop was lawful [and] [t]hat the detention was
not unduly prolonged. Especially in light of the fact that it was determined in a relatively
short period of time, that Allan Finau had an outstanding warrant for his arrest.”
                                      B. Legal Analysis
       “The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures . . . .’ (U.S. Const., 4th Amend.)
Generally, this means that warrantless searches are per se unreasonable unless the search
falls within a recognized exception. [Citation.] One exception involves an investigatory
stop of a vehicle based upon an objectively reasonable suspicion that the person stopped
has broken the law. [Citation.] If the stop does not meet this test, its ‘ “fruits” ’ cannot
be used against the person whose Fourth Amendment rights were violated and a motion
to suppress the evidence is appropriately granted.” (People v. Reyes (2011)
196 Cal.App.4th 856, 859-860 (Reyes), italics added, quoting Wong Sun v. United States
(1963) 371 U.S. 471, 484-485; see Terry v. Ohio (1968) 392 U.S. 1, 22.)
       “A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity. . . .’ [Citation.]” (People v. Souza (1994) 9 Cal.4th 224,
231 (Souza).) While reasonable suspicion can arise from less information than is
required for probable cause, “[t]he officer’s suspicion must be supported by some
specific, articulable facts that are ‘reasonably “consistent with criminal activity.” ’
[Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an
investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful,



                                                4
even though the officer may be acting in complete good faith. [Citation.]’ [Citation.]”
(People v. Wells (2006) 38 Cal.4th 1078, 1083.)
        “[T]he burden of proving the justification for the warrantless search or seizure lies
squarely with the prosecution. [Citations.]” (People v. Johnson (2006) 38 Cal.4th 717,
723.)
        “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on
whether the applicable law applies to the facts is a mixed question of law and fact that is
subject to independent review. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872,
891.)
        Vehicle Code section 270013 provides: “(a) The driver of a motor vehicle when
reasonably necessary to insure safe operation shall give audible warning with his horn.
        “(b) The horn shall not otherwise be used, except as a theft alarm system which
operates as specified in Article 13 (commencing with Section 28085) of this chapter.”
        In the present case, Officer Metzger testified that the officers conducted the traffic
stop after appellant briefly honked his horn because he believed that there had been a
violation of the Vehicle Code (see § 27001, subd. (b)), or, in the alternative, that the car’s
occupants might be in need of assistance. Appellant argues that, on the contrary, honking
his horn was a necessary safety measure in light of the police vehicle suddenly pulling
over to the side of the road and stopping. (See § 27001, subd. a).) Therefore, according
to appellant, the traffic stop was not based on reasonable suspicion, and the fruits of the
ensuing investigation should have been suppressed. (See Reyes, supra, 196 Cal.App.4th
at pp. 859-860.)
        We agree with appellant that the prosecution failed to satisfy its burden of proving
that the officers possessed objectively reasonable suspicion for the traffic stop. (See

        3
        All further statutory references are to the Vehicle Code unless otherwise
indicated.

                                               5
People v. Johnson, supra, 38 Cal.4th at p. 723; Souza, supra, 9 Cal.4th at p. 231.) First,
regardless of what the officers actually believed, it is inherently reasonable for a driver to
respond with a brief honk of the horn to a car traveling directly in front of it suddenly
pulling over to the side of the road, to warn the driver of the other car that it is not safe to
turn back onto the roadway or open the door and step out into traffic. It simply was not
objectively reasonable for the officers to believe that, in the circumstances presented,
appellant’s short honk of his horn constituted a violation of the Vehicle Code. On the
contrary, all reasonable evidence pointed to his complying with the requirement of
subdivision (a) of section 27001 that a driver must, “when reasonably necessary to insure
safe operation[,] give audible warning with his horn.”
       Second, the alternative reason offered by the police for stopping appellant’s car—
that the occupants of the car may have recognized that they were passing a police vehicle,
and may have been in need of assistance—has absolutely no support in the record. The
traffic stop took place at night; the officers were driving in an unmarked vehicle,
presumably out of uniform; appellant’s car continued moving after the honk; and the
officers, after stopping appellant’s car, did not inquire about any possible need for
assistance. This alternative reason given for stopping the car, which is not just
inconsistent with the first, but exceedingly far-fetched, provides additional evidence that
the officers’ subjective suspicion was not objectively reasonable in the circumstances, but
instead was unlawfully “ ‘predicated on mere curiosity, rumor, or hunch.’ ” (People v.
Wells, supra, 38 Cal.4th at p. 1083.)
       Hence, we conclude that the trial court erred in ruling that the officers’ suspicion
appellant had violated the Vehicle Code when he honked his horn was objectively
reasonable. (See Souza, supra, 9 Cal.4th at p. 231.)4 Accordingly, the questioning of

       4
         In light of our conclusion that the prosecution did not meet its burden of showing
that the traffic stop was justified, we need not address appellant’s additional argument
that the stop was based on a mistake of law on the part of the officers. (See Reyes, supra,
196 Cal.App.4th at pp. 862-863 [a suspicion based on a mistake of law cannot provide
the reasonable basis required for a lawful traffic stop]; see also Ketchum v. Pattee (1940)
37 Cal.App.2d 122, 131.)

                                               6
appellant, his consent to the search of his car, and the search itself, which all occurred
immediately after and as a direct result of the unlawful traffic stop, were conducted in
violation of appellant’s Fourth Amendment rights. (See Terry v. Ohio, supra, 392 U.S. at
p. 22; Reyes, supra, 196 Cal.App.4th at pp. 859-860, quoting Wong Sun v. United States,
supra, 371 U.S. at pp. 484-485.) Since the “fruits” of the unlawful search cannot be used
against appellant, the court should have granted his motion to suppress evidence. (Ibid.)
                                      DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.




                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.




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