IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A109083

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1 Filed 10/17/05 P. v. Foster CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Appellant, v. TRENT ALBERT FOSTER, Defendant and Respondent. A (Mendocino County Super. Ct. No. SCUK-CRCR ) Trent Albert Foster (defendant) was charged by information with a felony violation of Penal Code 1 section 459/460, subdivision (b), a misdemeanor violation of section 148, subdivision (a)(1) and a special allegation pursuant to section The court granted defendant s motion to suppress evidence on the ground that it was the fruit of an unlawful detention. After the People informed the court that they would be unable to proceed to trial, the court, pursuant to section 1385, dismissed the case. The People filed a timely notice of appeal, pursuant to section 1238, subdivision (a)(7). We shall hold that substantial evidence supports the court s factual findings, and that those findings support the legal conclusion that Officer Beard detained defendant, and that the detention was not justified by a reasonable suspicion that defendant was involved in criminal activity. indicated. 1 All subsequent statutory references are to the Penal Code, unless otherwise 1

2 FACTS The parties agreed at the outset of the suppression hearing that the sole issue was the legality of the initial detention of defendant by Officer Beard, prior to discovery of boxes containing tequila bottles that defendant admitted he placed behind a shed on private property, and an in-field identification of defendant. Officer Beard did not testify because he had moved out of state, and was no longer available. We must summarize the evidence in the light most favorable to defendant because the trial court made findings in his favor. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 780.) Joseph Mello testified that he is a courtesy clerk employed by Safeway in Fort Bragg. On November 7, 2004, he gave Sergeant Orozco a description of a man wearing a black coat and red cap. He told Orozco that he last saw the man leaving the parking lot, walking across the street and heading eastbound on Franklin Street. Although Mello observed a bulge underneath the man s coat, he did not mention that to Sergeant Orozco. Later, the store manager asked Mello to drive with him to identify a suspect being detained by Officer Beard. Mello identified the person as looking the same as the person he had seen leaving the store, except he was not wearing a cap. Ceil Walker, another Safeway employee, testified that, on November 7, 2004, a coworker called her attention to a man in the parking lot with what looked like boxes under his coat. She called to the man to stop, but he did not. She wrote a report and gave it to her assistant manager. Sergeant Orozco testified that he was on duty on November 7, 2004, and responded to a call concerning a suspected petty theft at Safeway. Joe Mello, a Safeway employee, told Orozco that the individual that committed the theft had just left walking eastbound toward a paint store. He gave Orozco a description of the man as a white male, wearing a black coat with red or orange cap. Orozco immediately broadcast that information by radio, and began checking the area. Orozco saw Officer Beard, the other officer on duty, about eight blocks east of the Safeway store, outside his patrol vehicle talking to a person wearing a black coat and red hat. The person turned and started to walk northbound through an alley. Orozco started to drive to the north side of the alley to 2

3 head the person off, but he soon turned around and headed back to where he had initially seen Officer Beard, because he heard on his radio that Officer Beard was in foot pursuit. Officer Beard and defendant were no longer in the spot where Orozco last saw them. Orozco began checking the area, and about a minute later he saw Officer Beard handcuffing a person in a private residential yard. That person matched the description Orozco had received from Mello. Chris Ames testified that he was home on November 7, when he saw Officer Beard run past his window. He went to the window to see what was going on, and saw that the officer had handcuffed a man in a black trench coat and a hat, possibly green or camouflage in color. Defendant testified that, on November 7, 2004, he was walking in the area of Whipple and Chestnut, when a police car pulled up behind him. Officer Beard got out and ordered defendant to stop, and defendant complied. Officer Beard asked him to identify himself and defendant did so. Defendant did not remember whether Officer Beard told him why he had stopped him. Defendant did tell Officer Beard he knew nothing about a theft, and did not have any stolen property on him. He did not refuse to allow Officer Beard to pat him down. He said he was going to walk on, and asked if the could leave. Officer Beard told him he had to stay. Officer Beard did not tell defendant the reason he had to stay was that Officer Beard wanted Safeway employees to verify that defendant was the person they saw stealing from their store. Defendant then turned around and walked away. Defendant started to run, and Officer Beard followed him, caught him in Mr. Ames s yard, and handcuffed him. Defendant had stashed some boxes containing bottles of tequila at or near a shed in Mr. Ames s yard. There was no testimony as to when defendant stashed the tequila boxes or when, where, or how they were recovered. The court filed a written order granting defendant s motion to suppress. The court found that, in the initial encounter with defendant, Officer Beard twice told defendant he could not leave, and concluded that the encounter was a detention. The court further found that the prosecution had failed to present sufficient evidence from which the court 3

4 could find that Officer Beard could articulate specific facts to provide some objective manifestation that [defendant] may have been involved in criminal activity. Sgt. Orozco had sufficient information; however, no evidence was presented that Officer Beard received that information or that, if received, such information formed the basis or rationale for Beard s detention of [defendant]. It further found that no evidence was offered as to how, where or under what specific circumstances Beard actually found or seized the liquor bottles or even if they were seized before, during or after the detention. Based upon the foregoing findings, the court granted the motion to suppress all statements made by defendant and the observations made by Officers Beard and Orozco at both detentions, and the seized bottles of liquor. 2 ANALYSIS The People s primary contention is that Officer Beard s initial encounter with defendant was not a detention because defendant ran away, and, even if it were, the detention would have been lawful, because Officer Beard had knowledge of the description of the suspect in the Safeway theft broadcast by Orozco, and defendant matched that description. When reviewing an order granting or denying a motion to suppress, this court reviews the explicit and implicit factual findings to determine if they are supported by substantial evidence. [Citation.] We then exercise our independent judgment to determine if the facts found by the trial court establish a seizure in violation of the Fourth Amendment. [Citation.] (People v. Hester (2004) 119 Cal.App.4th 376, 385.) A detention, within the meaning of the Fourth Amendment, occurs when, in view of all of the surrounding circumstances, a reasonable person would believe that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 545 (Mendenhall); Wilson v. Superior Court, supra, 34 Cal.3d at p. 790.) In California v. Hodari D. (1991) 2 It is unclear whether the suppression order also included the identification of defendant made by Mello. Although the motion to suppress specifically sought to suppress the observations of witnesses, which would have included the identification made by Mello, the court s suppression order specified only the observations of the two officers. 4

5 499 U.S. 621, (Hodari D.), the United States Supreme Court clarified that even in the face of an officer s attempts to effect a seizure by a show of authority, no seizure occurs if the targeted person does not submit. (Id. at pp , 626.) In Hodari D., supra, officers approached several youths huddled around a car. Upon seeing the officers approach, the youths took flight. An officer chased Hodari down an alley. Just before the officer caught and tackled him, Hodari tossed away a rock of cocaine. (Id. at pp ) The People conceded that there was no reasonable cause for a detention. (Id. at p. 623, fn 1.) The issue, as framed by the Court, was whether, at the time he dropped the drugs, Hodari had been seized within the meaning of the Fourth Amendment. [Fn. omitted.] If so... the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted. (Id. at pp ) The United States Supreme Court explained that a seizure may be accomplished by a show of authority without an actual physical taking of control, but that, if the targeted person does not yield, no seizure occurs. (Id. at pp ) The facts supported the conclusion that Hodari did not yield because he immediately turned and ran. The Court concluded that he was not seized until he was tackled. Therefore, the cocaine that he tossed away while he was running was not the fruit of an unlawful seizure, and the motion to suppress was properly denied. (Id. at p. 629.) Similarly, here, the People contend that no detention occurred in the initial encounter because defendant did not submit to a show of authority by Officer Beard. Instead, the People assert he walked, then ran, away from the officer, saying he did not want to talk to him. The trial court, as the trier of fact, clearly rejected the People s factual premise that defendant simply walked or ran away, and expressly found that Officer Beard told defendant he was not free to leave. Its findings are supported by substantial evidence. Although it was undisputed that defendant eventually ran away, the only testimony concerning the initial encounter with Officer Beard was defendant s. According to defendant, Officer Beard pulled up behind him, got out and ordered 5

6 defendant to stop, and defendant complied. Defendant remained under Officer Beard s control long enough to identify himself, and exchange some information. When defendant said he was going to walk on, and asked if he could leave, Officer Beard told him he had to stay. Defendant turned around and walked, then ran, away. Officer Beard followed him, caught him in Mr. Ames s yard, and handcuffed him. The court, as trier of fact, was free to draw the inference that when Officer Beard pulled up behind defendant, got out and ordered defendant to stop, defendant was not free to leave, and that this was not merely a consensual encounter, especially in light of defendant s testimony that Officer Beard expressly told him he had to stay. (People v. King (1977) 72 Cal.App.3d 346 (King) [conflicting inferences could be drawn from evidence officer told defendant to stop, but where court drew inference that defendant was free to go, reviewing court must uphold it].) The evidence also amply supports the conclusion that defendant submitted to this show of authority, since he testified he did stop, identified himself, denied any involvement in a theft, and then asked if he could walk on. The decision in King, supra, 72 Cal.App.3d 346, upon which the People rely, is distinguishable because the defendant in that case did not submit to a show of authority, and discarded the drugs as he ran away from an approaching officer. The defendant was part of a group of individuals who started walking away when a police officer approached them. The officer called the defendant by name, and asked him to stop. The defendant continued to walk, and sped up, throwing several balloons containing heroin to the ground. Based on this observation, the officer grabbed the defendant and arrested him. (Id. at p. 348.) The defendant in King, supra, contended on appeal that the court should have suppressed the heroin balloons because they were the product of an unlawful detention. This court held that the order to defendant to stop could have supported an inference of an intended and actual detention, or the inference drawn by the trial court that the officer wanted merely to have a consensual encounter with the defendant, who was free to go, and did so. (Id. at pp ) As the reviewing court, we deferred to the inference drawn by the trier of fact, and upheld the trial court s conclusion that defendant had not been illegally detained before he discarded the heroin. Here, by 6

7 contrast, the court, sitting as the trier of fact, found that defendant stopped when ordered to, and that he was told he was not free to leave. These findings amply support the legal conclusion that he was detained in the initial encounter with Officer Beard. The other case upon which the People rely, People v. Patrick (1982) 135 Cal.App.3d 290, 292, is distinguishable for the same reason; i.e., the defendant ran as soon as he saw an officer approaching him, and, when the officer chased him, he threw away cocaine and other controlled substances. The defendant argued the drugs should have been suppressed because they were discarded only after a threatened detention. The court upheld the denial of a motion to suppress because the trial court necessarily found that there was no detention until after the defendant discarded the contraband. (Id. at p. 293.) Here, by contrast, the court found that defendant was detained in his initial encounter with Officer Beard, and its underlying factual findings that defendant yielded to a show of authority and was not free to leave are supported by substantial evidence. We conclude, based upon the court s factual findings, that a detention occurred during the initial encounter between Officer Beard and defendant. Officer Beard made a show of authority to which defendant submitted, and he was told by the officer that he had to stay. In light of all the circumstances, defendant was seized and a reasonable person would have concluded that he was not free to leave. (See Mendenhall, supra, 446 U.S. at p. 554; Hodari D., supra, 499 U.S. at pp ) The court also did not err in concluding that the People failed to meet their burden to show that Officer Beard had knowledge of some articulable facts that would support a reasonable suspicion that defendant was involved in criminal activity. (United States v. Sokolow (1989) 490 U.S.1, 7; Terry v. Ohio (1968) 392 U.S. 1, 22.) The People contend that Officer Beard had a reasonable suspicion warranting the detention because defendant resembled the description of the person suspected of committing a theft at Safeway, and was seen soon after the report of a theft, in the same general area. (See, e.g., People v. Marquez (1992) 1 Cal.4th 553, 578 [police may lawfully detain for questioning person who resembles suspect]; In re Carlos M. (1990) 220 Cal.App.3d 372, [vague 7

8 description, coupled with presence at time and place close to commission of the crime, supports reasonable suspicion].) This argument assumes that the People presented sufficient evidence to persuade the court, as trier of fact, that Officer Beard received Sergeant Orozco s broadcast on the radio describing the suspect, and acted upon it when he detained defendant. As the court recognized during argument on the motion to suppress, Orozco s testimony and the actions of Officer Beard in stopping defendant closely following the broadcast was arguably at least some circumstantial evidence that Officer Beard was acting on that information. Nonetheless, the court was ultimately persuaded that, in the absence of some credible evidence that Officer Beard was actually in his car, and had the radio on to receive the broadcast, it was more reasonable to decline to draw the inference that he was acting based upon that information. Instead, it found that no evidence was presented that Officer Beard received that information, or that, if received, such information formed the basis or rationale for Beard s detention of Foster. 3 The People further contend that, even if the detention were unlawful, at least the liquor bottles should not have been suppressed because defendant failed to present any evidence that he had standing to challenge the search of Ames s yard, or the seizure of the bottles. The People assert that as a matter of law defendant could not have an expectation of privacy in the search of a third party s yard, or in abandoned, or stolen, property. (See Rakas v. Illinois (1978) 439 U.S. 128, 141, fn. 9; People v. Siegenthaler (1972) 7 Cal.3d 465, 470; People v. Melnyk (1992) 4 Cal.App.4th 1532, ) The argument is unavailing. First, there is no dispute that defendant had standing to challenge the legality of his detention, and he sought suppression of the evidence, including the bottles of tequila, on 3 The People also contend, for the first time in their reply brief, that any insufficiency in the evidence regarding whether Officer s Beard actually heard the description of the suspect that Orozco broadcasted, and whether he stopped defendant because he believed defendant matched that description, is attributable to the court s error in sustaining a hearsay objection. We exercise our discretion not to consider a contention raised for the first time in the reply brief because, among other things, defendant is thereby deprived of a meaningful opportunity to respond. (People v. Robinson (2002) 104 Cal.App.4th 902, 905.) 8

9 the theory that all of the evidence was the fruit of an unlawful detention. It therefore was irrelevant whether he had standing to challenge the search of Ames s property and the seizure of the bottles of tequila. 4 Once defendant established that the detention was illegal, the only remaining issue was whether each of the items defendant sought to suppress was the fruit of the poisonous tree. 5 The People advanced no argument below, nor do they on appeal, that any of the evidence defendant sought to suppress was not discovered by exploitation of the illegality of the detention, but rather by means sufficiently distinguishable to be purged of the primary taint. (See Wong Sun v. United States (1963) 371 U.S. 471, 488.) In any event, on similar facts, the court in People v. Verin (1990) 220 Cal.App.3d 551 rejected the argument that any abandonment following an illegal detention is an intervening independent act breaking the causal chain between illegal police conduct and seizure of evidence. (Id. at pp ) Second, the factual premise of the People s standing argument is not supported by the evidence. The underlying factual assumption is that the liquor bottles were found on Ames s property, and that the bottles were determined to be items stolen from Safeway. Yet, although Defendant did admit that he stashed the bottles on Ames s property, the court correctly observed that the People failed to present any evidence at all as to where and when the bottles were found. Nor did the People present any evidence that the bottles were items missing from the Safeway store, and therefore stolen property. In sum, based upon the facts as found by the trial court, which findings are supported by substantial evidence, we conclude that defendant was detained in his initial 4 In fact, when the parties agreed at the outset of the hearing that the sole issue for the court to decide was the legality of the detention, the prosecutor herself stated her understanding that this meant they would not reach any issue of standing or expectation of privacy. 5 No direct evidence was presented as to precisely when defendant stashed the boxes containing the tequila. Nonetheless, it was reasonable to infer that he did so sometime after his initial encounter with Officer Beard, and before Officer Beard caught and handcuffed him in Mr. Ames s yard. Both parties premised their arguments to the court on that assumption, and the court, by granting the motion, also implicitly drew the same conclusion. 9

10 encounter with Officer Beard, and that the People failed to meet their burden of showing that Officer Beard had a reasonable suspicion that defendant was involved in criminal activity. The court therefore properly granted the motion to suppress the evidence obtained as a result of the unlawful detention. The judgment is affirmed. CONCLUSION STEIN, J. We concur: MARCHIANO, P. J. SWAGER, J. 10