- CUADRA, ___ CA5 ___, ___ CR3 ___ (21) #B310554:
On June 3, 2020, at 2:15 a.m., Deputy Sheriff Xavier Zeas and his partner drove their patrol car into the Destiny Inn parking lot in the City of Commerce and stopped next to a parked car near where Def. was standing.
Because of Black Lives Matter protests, there was a curfew in effect. From inside the patrol car, Deputy Zeas asked Def. if he was aware of the curfew. Def. said No. Deputy Zeas then asked appellant if he was on parole or probation. Def. said he was on probation.
The two officers exited their patrol car and asked Def. to walk over to the hood of the patrol vehicle. Def. raised his hands and stepped backward, away from the patrol car. He asked why the officers were “attempting to detain” him, as he had done nothing wrong.
Because Def. had his hands up, Deputy Zeas saw an unidentified “bulge” in Def’s right front pants pocket. The bulge was “pretty big” and consistent with the shape of a firearm. At this point Def. told them he had a gun.
At that point Deputy Zeas ordered Def. to the ground. He complied and Deputy Zeas performed a pat down search, recovering a loaded .38 caliber revolver from appellant’s right front pants pocket. After entertaining argument, the trial court denied the motion.
In a 2–1 decision, the Court of Appeal, per Stratton, J., reversed. The question was whether there was a sufficient “show of authority” to turn this encounter into an unlawful detention.
Instructions to put one’s hands on the hood of a car has been deemed a show of authority. (U.S. v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1061; U.S. v. Brown, supra, 401 F.3d at p. 595.) By his own testimony, Deputy Zeas began the detention process when he “asked” appellant to come toward the hood of the patrol car. Hearing those words, whether as a “request” or an “order,” no reasonable person would feel free to leave.
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Nevertheless, relying on California v. Hodari D., the People argue there was no detention because appellant did not actually submit to the officers’ show of authority. Instead, he raised his arms and stepped back, conduct which the People contend is noncompliance. We disagree. Generally, people do not put up both hands and step back while still facing the police if they believe they can just walk away. They walk away. Raising one’s hands and stepping back is a universally acknowledged submission to authority.
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The observation of the bulge in appellant’s pocket occurred as a result of appellant’s submission to authority. As Deputy Zeas put it, “when he raised his hands in the air, that revealed a bulge in his front right pants pocket.”
We conclude that there was neither probable cause to arrest appellant but for the illegal detention, nor was this a consensual encounter after the officers directed appellant to the hood of the car. As for a brief investigatory stop under Terry v. Ohio, there must be an objective manifestation of a reasonable articulable suspicion that cri minal activity is afoot and that appellant was a person engaged in, or about to engage in, criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230.) Here there was neither. All the officers knew was that appellant was standing next to a car in a motel parking lot at 2:00 a.m. … Under the totality of circumstances, we conclude appellant submitted to a show of authority and his detention was not founded on reasonable suspicion, consent, or probable cause to arrest. The stop does not pass constitutional muster and the revolver seized as a result of the search should have been suppressed.
Does a question tug at your mind? A question such as: Why wasn’t this a valid probation search?
The majority took care of this with one line:
And without knowing whether defendant’s grant of probation included a search condition, the officers could not ultimately stop and search him as they did. (In re Jaime P. (2006) 40 Cal.4th 128, 139.)
In dissent, Grimes, Act. P.J., wrote:
More to the point, however, I do not agree with the majority that the deputies did in fact detain defendant when they got out of the patrol car and asked defendant to come toward the front of the patrol car. Defendant did not do so. Rather, defendant raised his hands in the air and started backing away from the deputies, asking why they were “attempting to detain” him when he had done nothing wrong. When defendant raised his hands, Deputy Zeas noticed a large bulge in defendant’s right front pants pocket. Before Deputy Zeas could respond, defendant “spontaneously” told the deputies he had a gun….In my view, there was an attempted seizure only, and the detention did not occur until defendant subsequently complied with the deputies’ demand to get down on the ground.