People v. Gonzalez

• Decision Date: 11 June 1992
• Docket Number: No. H008459,H008459
• Citation: 8 Cal.Rptr.2d 640,7 Cal.App.4th 381
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Santiago V. GONZALEZ, Defendant and Appellant.

Page 640

8 Cal.Rptr.2d 640

7 Cal.App.4th 381

The PEOPLE, Plaintiff and Respondent, v. Santiago V. GONZALEZ, Defendant and Appellant.

No. H008459.

Court of Appeal, Sixth District, California.

June 11, 1992.

Barbara Michel, Berkeley (Under appointment by the Court of Appeal), for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Catherine A. Rivlin, Allan Yannow, Deputy Attys. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

Appellant challenges the denial of his Penal Code section 1538.5 motion to suppress evidence. He was thereafter convicted of two counts of violating Health and Safety Code section 11351 (possession for sale of heroin and cocaine), two counts of violating Health and Safety Code section 11352, subdivision (a) (transportation of cocaine and heroin), and one count of violating Health and Safety Code section 11550 (being under the influence of heroin).

Appellant based his motion to suppress evidence on the events of an August night in 1990. At 10:15 p.m., two uniformed police officers in an unmarked car saw a gold Buick change lanes rapidly without signaling. The officers stopped the car in front of the registration office of a motel. The officers got out of their car and started to approach the Buick. Appellant, the passenger, started to get out of the Buick. One officer commanded him to get back inside the car.

The officer later testified that at that point he had no reason to suspect appellant was involved in any illegal activity. The officer ordered appellant into the car "[f]or the safety of both my partner and I. We didn't know why he was getting out." ¹ Appellant got back in the car and shut the door. The officer then approached appellant and noticed certain symptoms which led to appellant's arrest for being under the influence of heroin. Standing at the patrol car while the officers conferred, appellant discarded some contraband.

Appellant contends he was unlawfully detained when the officer ordered him back into the car and all that followed was a product of that detention. "[A] person has been 'seized' within the meaning of the Fourth Amendment only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497.) Appellant was detained when the officer told him to get back in the car. Any reasonable person would feel that he was not free to leave after this unequivocal verbal command.

Appellant argues that this detention must be justified by a reasonable suspicion of criminal activity. Respondent asserts that an officer conducting a lawful vehicle stop may request that the passenger remain in the car for officer safety reasons without separate probable cause to detain the passenger.

Respondent relies on People v. Grant (1990) 217 Cal.App.3d 1451, 266 Cal.Rptr. 587, which was also cited by the trial court as providing a basis for denying appellant's motion. In Grant, an officer stopped a car for speeding and received false information from both the driver and passenger about the driver's identity. He then requested identification from the passenger. This questioning led to his obtaining consent to search the car. On appeal, the passenger argued that his consent to the search was the product of an unlawful detention which began when the officer questioned him as to his identity. The court said that "the stop and detention of defendant was merely incident to his being a passenger in a lawfully stopped vehicle. [Citation]" and that "if the stop of the vehicle and its operator was lawful ... there was a lawful basis to stop and detain defendant." (Id. at p. 1460, 266 Cal.Rptr. 587.) However, the court refrained from holding that the passenger was actually detained, saying "we see no need to characterize the nature of the officer/passenger contact where it does not go beyond the legitimate law enforcement practices incidental to the traffic stop." (Ibid.) Finally, the court said the defendant's "encounter" with the officer "independent of the stop" was a consensual one. (Id. at p. 1461, 266 Cal.Rptr. 587.)

The Grant court cited Wilson v. Superior Court (1983) 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325, Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 and INS v. Delgado (1984) 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 to support its conclusion that, because law enforcement officers do not violate the Fourth Amendment in approaching an individual and asking if he is willing to identify himself, the questioning of defendant was not unreasonable and did not require separate justification. In Grant, as in those cases upon which it relied, the subject of the police attention was free to leave. Thus, although the court said that the passenger had been "detained," the opinion is grounded on the premise that the passenger was free to withdraw from this consensual encounter with the officer. In contrast, appellant here indicated an intention to leave the car by opening the door and beginning to step out but was compelled to remain to comply with the police command.

In People v. Maxwell (1988) 206 Cal.App.3d 1004, 254 Cal.Rptr. 124, the court upheld an officer's authority to order a passenger out of a lawfully stopped vehicle for officer safety purposes. The officer was making an early morning stop of a vehicle containing three occupants. The driver was unable to produce identification. The officer decided to interview the passengers separately to establish the identity of the driver. He asked one of the passengers to step out of the car. As the passenger alighted, he dropped some contraband. The court observed that "the seminal case of Pennsylvania v. Mimms (1977) 434 U.S. 106 [98 S.Ct. 330, 54 L.Ed.2d 331] [in which] the United States Supreme Court held the police could order the driver of a lawfully detained vehicle out of the car without an articulable suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety ... left unresolved [the question] whether the same rule applies equally to passengers." (Id. at p. 1007, 254 Cal.Rptr. 124, emphasis in original.) In concluding that the challenged request to alight was justified, the court noted that "the mere request to exit the vehicle ... did not amount to a detention ..." The court specifically distinguished People v. Spicer (1984) 157 Cal.App.3d 213, 203 Cal.Rptr. 599, because in that case, the passenger "had no...