• Esparza, 95 CA51084, 313 CR3 360 (23) #D080703:
After defendant Christopher Esparza was pulled over for a Vehicle Code violation, a detective who specializes in gang enforcement recognized him and two of his passengers as members of a local gang. The detective thought Delfino Osnaya, one of the passengers, was likely to be armed and told the other officers they needed to search him. After their patdown of Osnaya yielded a loaded gun, the officers searched Esparza as well and found another loaded weapon.
The detention lasted seven minutes.
Esparza’s 1538.5 motion was denied. The Court of Appeal, per Dato, J., affirmed.
Esparza argued: (1) the officers lacked reasonable suspicion that he was armed and dangerous when they conducted his patdown, and, in any event, (2) the detention lasted too long because the traffic stop went beyond what was necessary for the officers to issue him a citation for tinted windows.
By the time officers conducted the patdown search of Esparza, they had already gathered a considerable amount of specific information. Esparza had been identified by a veteran gang detective as an established gang member who was driving a car with (at least) two other gang members. At the moment of the traffic stop, he was driving through contested territory claimed by both his gang and a rival group. Each of the gangs were known for violent activity. A ghost gun with a magazine of ammunition had just been found on one of his passengers. Given that “consideration of the modes or patterns of operation of certain kinds of lawbreakers” is a permissible point of reference from which a “trained officer [can] draw[ ] inferences and make[ ] deductions” (Cortez, supra, 449 U.S. at p. 418), there was enough here to reasonably infer that Esparza may have been armed and dangerous in that moment. To say otherwise would be tantamount to undermining all of the specialized knowledge about gang operations gathered by investigators who are deeply immersed in tracking such activity and would impermissibly shrink Terry stop analysis to an artificially confined scope.
***
Esparza’s second argument focuses on the length of his detention, asserting it was unduly prolonged because it went beyond the officers’ only necessary tasks: to run his license and then issue him a citation for tinted windows. After conducting a thorough review of how the traffic stop proceeded, we are convinced that at each juncture the officers acted within the bounds of the law. Any delay that resulted from Arreola’s decision to wait for backup was reasonable in light of his justifiable safety concerns. As a result, the brief investigation of Osnaya that took place in the interim did not prolong the detention.
***
Finally, we address Esparza’s reliance on People v. McGaughran (1979) 25 Cal.3d 577, 581 (McGaughran), which is distinguishable on the facts alone. In that case, an officer stopped a car for driving the wrong way on a one-way street, and then detained the car for over a half hour while he checked for warrants, called for backup, and rechecked the warrants. He spent a significant portion of that time sitting in his car alone without displaying the kind of concern for officer safety present in this case. In contrast, the total time between the initial detention of Esparza’s car and his patdown search was about seven minutes.
Consent to Search Car Was Coerced By Threat to Tow
- BOITEZ ___ CA5 ___, ___ CR3 ___ (23) #C098102:
Officer pulled defendant over for failing to come to a complete stop at an intersection. Off. asked Def. for license, registration, and insurance. Def. had none. It was Def’s mother’s car.
Off. asked for consent to search car. Def. looked nervous. Off. said, “Look, I’m not giving you a ticket for running the stop sign, I’m not giving you a ticket for the insurance stuff, and I’m not towing your car. That seems like a pretty good deal. If I tow your car, brother, you ain’t getting it back till Monday. That’s the tow plus two days of storage, maybe three . . . .” Def. asked whether his sister, who had a valid license, could take the car. Off. replied, “That’s what I’m trying to work out with you, man. You be cool with me brother; I’ll be cool with you….I’m trying to cut you a break, dude, okay? So if you’re good with that, I’ll cut you a break?” Defendant replied, “Yup,” while nodding his head. Off. subjectively believed he had authority to tow, even though he did not.
Search turned up loaded gun under passenger seat. Defendant was charged with being a felon in possession of a firearm, being a felon in possession of ammunition, unlawfully carrying a loaded firearm, carrying a loaded firearm in a vehicle, and driving with a suspended license. Defendant filed a motion to suppress. Denied.
The Court of Appeal, per Robie, Acting PJ, reversed. People have the burden to show by a preponderance that a defendant’s consent is voluntary.
We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given. As part of our analysis, we adopt the reasoning of the First Circuit Court of Appeals that the question of voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant’s consent to search.
Fleeing Officer’s Request Was Resisting/Delaying Arrest
- In re T.F.-G., 94 CA5 893, CR3 685 (23) #H050112:
San Jose officers in unmarked car stopped near a group of five by a parked red Mustang. They smelled burning MJ and got out to question the people. They pat searched two, then approached Def., a juvenile. The convo went like this:
Off: “Can you come over here for a minute?”
Def.: “For what?”
Off: “Huh?”
Def.: “For what?”
Off: “Just come over here.”
Def.: “For what?”
Off: “Because I asked you to. Don’t make this—”
At which point, Def. took off running. He was tackled, punched, and arrested for resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)). A loaded gun was found in his gym shorts pocket.
Suppression denial affirmed.
T.F.-G. argued that the police officers had not detained or attempted to detain him before he fled, and therefore he was not lawfully arrested pursuant to section 148, and the search of his basketball shorts was not incident to a valid arrest.
The court held that “a reasonable person in T.F.-G.’s position would have understood that the request to go to the officer was mandatory. By the time T.F.-G. fled, the officers were at least attempting to detain him. The officers therefore had probable cause to believe that T.F.-G. violated section 148.”