The opinion
Filed 11/5/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B310554
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA487710)
v.
OSCAR CUADRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Laura F. Priver, Judge. Reversed.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant Oscar Cuadra was charged with possession of a
firearm by a felon in violation of Penal Code section 29800,
subdivision (a)(1). The firearm was seized from his person by the
arresting officers. Before pleading no contest, appellant filed a
motion to suppress the firearm evidence under Penal Code
section 1538.5 as the fruit of an unlawful detention. Appellant
contends the trial court erred when it denied the motion. We
agree and reverse.
BACKGROUND
Los Angeles County Deputy Sheriff Xavier Zeas was the
only witness at the hearing on the motion. The following
evidence was adduced.
At 2:15 a.m. on June 3, 2020, Deputy 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 appellant was
standing near. The parking lot was a narrow strip of asphalt
sandwiched between the motel and a fence fronting Triggs
Avenue. There were five parking stalls. The lot was so narrow
that Deputy Zeas said he was five to six feet from appellant when
they encountered each other.
Because of Black Lives Matter protests, there was a curfew
in effect. From inside the patrol car, Deputy Zeas asked
appellant if he was aware of the curfew. Appellant said no.
Deputy Zeas testified he did not cite appellant for a curfew
violation because he just wanted to find out if appellant knew
about it. Indeed, he testified the curfew did not apply to persons
on private property, which is where appellant was standing.
Deputy Zeas was correct. (L.A. County Bd. of Supervisors,
Chair’s exec. order (May 31, 2020) [“No person . . . shall be upon a
public street, avenue, boulevard, place, walkway, alley, park or
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any public area of unimproved private realty within the County
between 6:00 p.m. and 6:00 a.m. of the following day.”].)
Deputy Zeas then asked appellant if he was on parole or
probation. Appellant said he was on probation. Deputy Zeas
testified that “at that point” he decided to detain appellant. One
might ask, for what? Appellant was standing next to a car in the
Destiny Inn parking lot at 2:15 a.m. The two officers exited their
patrol car and as Deputy Zeas testified, “at that point . . . we
asked him to walk over to the hood of our patrol vehicle.”
Appellant then raised his hands and started to step backward
away from the patrol car, all the while asking why the officers
were “attempting to detain” him when he had done nothing
wrong. It was after he raised his hands in response to Deputy
Zeas that Deputy Zeas saw an unidentified “bulge” in appellant’s
right front pants pocket. The bulge was “pretty big” and
consistent with the shape of a firearm. Before Deputy Zeas could
react to what he just observed, appellant “spontaneously” told the
deputies he had a gun.
At that point Deputy Zeas ordered appellant to the ground.
Appellant complied and was detained. Deputy Zeas performed a
pat down search and recovered a loaded .38 caliber revolver from
appellant’s right front pants pocket.
After entertaining argument, the trial court denied the
motion. This appeal followed.
DISCUSSION
“ ‘In reviewing a trial court’s ruling on a motion to suppress
evidence, we defer to that court’s factual findings, express or
implied, if they are supported by substantial evidence. [Citation.]
We exercise our independent judgment in determining whether,
on the facts presented, the search or seizure was reasonable
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under the Fourth Amendment.’ ” (People v. Silveria and Travis
(2020) 10 Cal.5th 195, 232; accord, People v. Brown (2015)
61 Cal.4th 968, 975 (Brown).)
Officers must have sufficient justification under the Fourth
Amendment to effect a search and seizure. There are three
distinct types of police-citizen encounters, each requiring a
different level of suspicion to be deemed reasonable under the
Fourth Amendment: (1) arrest, which must be supported by
probable cause; (2) brief investigatory stops, which must be
supported by reasonable articulable suspicion; and (3) brief
encounters between police and citizens, which require no
objective justification. (U.S. v Brown (2005) 401 F.3d 588, 592;
Terry v. Ohio (1968) 392 U.S. 1.) It is well settled that “[a]n
officer may approach a person in a public place and ask if the
person is willing to answer questions. . . . Such consensual
encounters present no constitutional concerns and do not require
justification.” (Brown, supra, 61 Cal.4th at p. 974, citing Florida
v. Bostick (1991) 501 U.S. 429, 434.)
A consensual encounter may ripen into a seizure for Fourth
Amendment purposes “ ‘when the officer, by means of physical
force or show of authority, has in some way restrained the liberty
of a citizen.’ ” (Brown, supra, 61 Cal.4th at p. 974, quoting Terry
v. Ohio, supra, 392 U.S. at p. 19, fn. 16.) “In situations involving
a show of authority, a person is seized ‘if “in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave,” ’ or
‘ “otherwise terminate the encounter.” ’ ” (Brown, at p. 974;
Florida v. Bostick, supra, 501 U.S. at pp. 437–438 [A seizure of a
person occurs the moment a reasonable person would not have
felt free to leave without responding or yielding to the officer.].)
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“The dispositive question is whether, ‘ “in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he [or she] was not free to leave . . .”
[citation].’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
“The test is ‘objective,’ not subjective; it looks to ‘the intent of the
police as objectively manifested’ to the person confronted.
[Citation.] Accordingly, an ‘officer’s uncommunicated state of
mind and the individual citizen’s subjective belief are
irrelevant . . . .’ ” (Ibid., italics added.)
A seizure may occur by a show of authority alone without
the use of physical force, “but there is no seizure without actual
submission.” (Brendlin v. California (2007) 551 U.S. 249, 254,
italics added.) The test for existence of a show of authority is an
objective one: whether the officer’s words and actions would have
conveyed to a reasonable person that he was being ordered to
restrict his movement. (California v. Hodari D. (1991) 499 U.S.
621, 628.)
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. It is objectively
apparent the officers intended to detain and frisk appellant. Why
else would they have instructed him to move to the hood of their
patrol car? And appellant, by his question, reasonably
understood that he was being detained. That appellant raised
his hands and stepped backward is not, by any stretch of the
imagination, an indication that he believed he was not being
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seized and was, instead, free to leave. Indeed, the People, in
their briefing, state: “Admittedly, when the deputies exited their
car and asked appellant to approach their car, a reasonable
person in those circumstances would have believed that he was
not free to leave or otherwise terminate the encounter.”
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. It is an accepted way to reassure
someone who is armed and confronting you that you pose no
threat because you have no weapon in hand, your arms are not
poised to attack, and you are not advancing in a menacing way.
By putting up both hands appellant yielded to the officers’ show
of authority. To press the point, the record discloses no evidence
from which one might infer that appellant’s compliance was
feigned. Once he put up his hands, he continued to submit to the
officers’ demands. (Cf. U.S. v. Brodie, supra, 742 F.3d at p. 1061
[defendant who complied with order to put hands on hood of car
and then immediately fled still found to have submitted to the
officers’ show of authority; later acts of noncompliance do not
negate defendant’s initial submission, so long as it was
authentic].)
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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 criminal 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. 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.)
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.
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DISPOSITION
The judgment of conviction is reversed.
CERTIFIED FOR PUBLICATION
STRATTON, J.
I concur:
WILEY, J.
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GRIMES, J., Dissenting.
I respectfully dissent. The record shows substantial
evidence of a reasonable basis for engaging in the consensual
encounter which led to an attempted detention and, moments
later, a successful detention. Deputy Xavier Zeas and his partner
approached defendant because he was standing in a motel
parking lot, after midnight, two days after Los Angeles and
several other Southland cities had imposed a curfew from
6:00 p.m. to 6:00 a.m., which remained in effect at the time of this
encounter. I agree with the trial court it is important to
acknowledge the context; there was great unrest throughout our
county in the wake of the looting that followed the Black Lives
Matter protests. National Guard troops and police officers
guarded the barricaded steps of Los Angeles City Hall and tried
to restore order in Santa Monica and Long Beach. For two days,
looters spent hours vandalizing and breaking into stores, stealing
items and setting fires in Los Angeles, Santa Monica, and Long
Beach. Hundreds were arrested on suspicion of burglary, looting,
vandalism, failure to disperse, and firearms and curfew
violations. Five LAPD officers were injured, with two of them
hospitalized. (Reyes-Velarde et al., Looting hits Long Beach,
Santa Monica as countywide curfew goes into effect, L.A. Times
(May 30, 2020, rev. June 1, 2020)
<https://www.latimes.com/california/story/2020-05-31/looting-
vandalism-leaves-downtown-l-a-stunned>[as of Nov. 4, 2021],
archived at <https://perma.cc/J3V2-9LHT>.)
In the midst of this turmoil, Deputy Zeas and his partner
were on patrol in the early morning hours of June 3, 2020, when
they saw defendant standing in the motel parking lot, next to a
parked car. The deputies remained inside their patrol car while
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Deputy Zeas asked defendant if he was aware of the curfew.
Defendant said no. Deputy Zeas asked defendant if he was on
parole or probation. Defendant said he was on probation.
Deputy Zeas testified that “at that point” he decided to detain
appellant. The majority poses the question, “One might ask, for
what?” I think in considering this encounter in context, it was
reasonable under the circumstances for the deputies to think they
should inquire about defendant’s presence outside that night.
In the days before this encounter, images of the violence
and looting had filled the media nonstop. Perhaps it was true
defendant did not know about the curfew, as he told the deputies,
though that seems unlikely. Deputy Zeas testified he did not
decide to detain defendant for a curfew violation; and there may
have been no curfew violation, because defendant was on private
property. But I do not find it was unreasonable for Deputy Zeas
to form a plan to detain defendant.
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.
I agree with the majority there was a show of authority
when the deputies got out of the patrol car and asked defendant
to approach the front of their vehicle. At that point in the
otherwise consensual encounter between the deputies and
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defendant, a reasonable person in defendant’s position would not
have felt free to leave. However, I disagree the record shows
defendant submitted to that authority. 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.
“A person is seized by the police and thus entitled to
challenge the government’s action under the Fourth Amendment
when the officer, ‘ “by means of physical force or show of
authority,” ’ terminates or restrains his freedom of movement,
[citations], ‘through means intentionally applied.’ ” (Brendlin v.
California (2007) 551 U.S. 249, 254; italics omitted (Brendlin).)
Of particular relevance here, “[a] police officer may make a
seizure by a show of authority and without the use of physical
force, but there is no seizure without actual submission.” (Ibid.)
Brendlin tells us that when a defendant does not submit to a
show of authority, “there is at most an attempted seizure, so far as
the Fourth Amendment is concerned.” (Ibid., italics added.)
Whether there has been a submission to a show of
authority is judged under a totality of circumstances test.
(Brendlin, supra, 551 U.S. at p. 255.)
The majority says that defendant yielded to the deputies’
show of authority by raising both of his hands, which they
characterize as a “universally acknowledged submission to
authority.” I agree that whenever anyone says, “Put your hands
up or I’ll shoot,” the raising of hands conveys submission. But I
cannot agree that is unquestionably evidence of submission that
gives rise to the majority’s reduction formula: in assessing
human behavior, raised hands always = submission. Defendant
did not say, “Please don’t shoot,” or “I give up.” I find it more
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reasonable to infer from the circumstances of this case that
defendant raised his hands in protest, or in a “What’s up with
you?” gesture, which is consistent with defendant’s words in
protest that he had done nothing wrong, so why are you trying to
detain me.
At no point did defendant approach the car and place his
hands on the hood as the defendant did in United States v. Brodie
(D.C. Cir. 2014) 742 F.3d 1058, 1061. Deputy Zeas and his
partner had not drawn their guns, were not acting aggressively,
and defendant was not cornered. In fact, defendant was standing
in an unfenced portion of the parking lot. Deputy Zeas testified
that “pedestrian foot traffic [could] come and go as they please” at
that location. Defendant was in a position to flee or simply walk
away and nothing in his behavior indicated he had ruled out
either option. (See, e.g., United States v. Huertas (2d Cir. 2017)
864 F.3d 214, 216-217 [affirming denial of motion to suppress,
finding no submission to authority where the defendant
momentarily stopped and answered question from officer in
patrol car, but then fled as soon as the officer got out of the car
and attempted to continue the encounter].)
When defendant backed away and raised his hands, a bulge
in his pants pocket was revealed. The record does not suggest
either deputy said or did anything in reaction to seeing the bulge.
Neither deputy asked defendant if he had a gun in his possession.
They did not draw their guns. One can reasonably infer
defendant saw Deputy Zeas’s eyes fix on the bulge in his pocket,
and that was why he then blurted out that he had a gun. At that
point, the deputies had reasonable suspicion to detain defendant.
The deputies immediately told him to lay on the ground.
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Defendant complied with this second show of authority, and the
detention occurred at that time.
I would affirm the denial of defendant’s motion to suppress.
GRIMES, Acting P. J.
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