People v. Linn

• Decision Date: 08 October 2015
• Docket Number: A145052
• Citation: 241 Cal.App.4th 46,193 Cal.Rptr.3d 342
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicole Theresa LINN, Defendant and Appellant.

241 Cal.App.4th 46

193 Cal.Rptr.3d 342

The PEOPLE, Plaintiff and Respondent,

v.Nicole Theresa LINN, Defendant and Appellant.

A145052

Court of Appeal, First District, Division 2, California.

Filed October 8, 2015

Gary Lieberstein, District Attorney, Pooja Kumar and Bradley Morrow, DeputyDistrict Attorneys, for Plaintiff and Appellant.

Ronald H. Abernethy, Public Defender, and Ji-Hyun Cho, Deputy Public Defender, for Defendant and Respondent.

OPINION

STEWART, J.

After the Napa County District Attorney filed a criminal complaint in Napa County Superior Court charging defendantNicole Theresa Linn with misdemeanor driving under the influence of alcohol, defendant filed a motion under Penal Code section 1538.5 to suppress the evidence upon which the People relied.She contended she had been unlawfully detained prior to the police obtaining this evidence in violation of her Fourth Amendment rights against unlawful search and seizure.The trial court, a court commissioner presiding, agreed and granted her motion.The appellate division of the superior court reversed this decision, concluding defendant's encounter with the police officer who arrested her was consensual up to the time that he reasonably suspected she had been driving under the influence.

The appellate division certified the case for transfer to this court to resolve a conflict among our appellate courts regarding the significance of a police officer taking a person's voluntarily offered identification card in evaluating whether their encounter is consensual or a detention.We ordered the case transferred.We agree with the appellate division's rejection of a bright-line rule about an officer's taking of a voluntarily offered identification card.However, substantial evidence indicates that the officer's actions reviewed in their totality constituted an assertion of his coercive authority before he had any reasonable suspicion to detain defendant.These actions included his stopping within three feet of defendant as she exited her vehicle to, as he told her, talk with her about her passenger's flicking ashes out of the vehicle's window as defendant drove, asking her for her driver's license without explanation as he commanded her to put out her cigarette and put down her soda can, retaining her driver's license as he conducted an unexplained record check, and questioning the passenger for personal details that the officer recorded on a form.No objectively reasonable person would believe she was free to end this encounter under the totality of these circumstances, regardless of the officer's polite demeanor and relatively low-key approach.We reverse the appellate division's decision and affirm the trial court's order granting defendant's suppression motion on the ground that she was unlawfully detained before the officer had a reasonable suspicion that she had been driving under the influence.

BACKGROUND

In February 2014, the Napa County District Attorney filed a criminal complaint charging defendant with one count each of misdemeanor driving under the influence of alcohol ( Veh. Code, § 23152, subd. (a) ) and misdemeanor driving with a blood-alcohol concentration of 0.08% or higher ( Veh. Code, § 23152, subd. (b) ).Defendant pled not guilty to both counts.

I.Defendant's Motion to Suppress

In May 2014, defendant filed her suppression motion, which the People opposed, and a hearing was held, presided over by a court commissioner.At the onset, the People stipulated defendant was detained without a warrant; therefore, as the court then noted, it was the People's burden to justify the detention.The People did so by arguing the encounter was consensual up to the time the arresting officer, City of Napa Police Department OfficerThomas Helfrich, reasonably suspected defendant was driving under the influence of alcohol.Helfrich testified, a video recording of a part of the encounter captured on his body camera was admitted into evidence and played, and defendant testified on her own behalf.After this presentation of evidence and argument by counsel, the trial court granted the motion.¹

A.Officer Helfrich's Testimony

Officer Helfrich testified that he was on patrol in Napa dressed in full uniform, riding on a marked police motorcycle on the morning of January 29, 2014.While stopped at Division and Franklin Streets facing west, he saw a Ford Expedition² with a driver and passenger inside turn left onto westbound Division Street.The passenger held what appeared to be a lit cigarette out an open window and Helfrich "just saw a quick flick of the fingers, which appeared to be he was flicking the ashes out the window."Helfrich understood the passenger's action violated the Vehicle Code.

Helfrich said he drove toward the Expedition, which had parked in a parking stall on Division Street before he reached it.He stopped "next to the car," parked his motorcycle "approximately three feet, maybe more, from the driver side door area," and got off his motorcycle as defendant driver and the passenger were getting out of the Expedition.Helfrich did not turn on lights or sirens, block defendant's pathway, display his weapon, or comment about whether the two were free to leave.

Helfrich said he contacted the passenger and spoke to defendant, who stood near him by the driver side compartment of the Expedition.He told defendant"[t]he reason for my contact was because ... the passenger ... was flicking ashes out of the window."He asked the passenger "[w]hy he was flicking ashes out the window, what his name was, ... general information."The passenger responded to Helfrich's question about flicking the ashes, " ‘I don't know.’ "

On direct examination, Helfrich said he turned on his body camera "[r]ight after" getting off his motorcycle, and a portion of the resulting video was then played and admitted into evidence.Helfrich said he"had a brief conversation with [defendant]" and "started smelling alcohol coming from her" within a minute.On redirect, however, he revised this time estimate, saying he first noticed defendant smelled of alcohol "[o]ver two minutes" after he first stopped her.

Helfrich said that when he smelled alcohol he asked defendant if she had been drinking and she suggested he was smelling her perfume.He checked her horizontal gaze nystagmus, asked her questions about her drinking, administered a breath test, concluded she had been driving while under the influence and arrested her.³

On cross-examination, Helfrich acknowledged that he might have asked defendant questions before he turned on his body camera.He said it was a safe assumption that he asked her name and to see her driver's license before turning on his body camera because he asked those questions and neither was on the video recording.He also said that when defendant offered her license to him, he took it and held it in his hand as he called dispatch and ran a record check on defendant.These events are not depicted on the video recording either.

Helfrich also testified on cross-examination that defendant did not get out of the Expedition in response to any request by him or try to walk away, and that he did not tell her not to go anywhere.He could not recall if she was smoking a cigarette, but said if she was, he would have told her to put it out since he"always tell[s]people to put out their cigarettes."He took down the passenger's personal information and ran a records check on him, but did not write a citation for him or defendant.Helfrich did not believe that defendant had violated any Vehicle Codesection.

B.Defendant's Testimony

Defendant testified that she parked her Ford Expedition and was getting out when she first saw Helfrich, who was sitting on a motorcycle parked right next to her car.The first thing he said to her was that he"noticed my passenger flicking ashes out the window."He asked for her driver's license.She was smoking and drinking a can of soda, and Helfrich "asked me to put [the cigarette] out" and "put [the can] down."⁴He did not turn on his emergency lights or siren, use a blow horn, raise his voice or block her path.

When asked whether she tried to walk away from Helfrich at any point, defendant answered "[n]o," but stated that "he wouldn't let me walk off."She then testified that she"tried to walk away when I got out of my vehicle" and that Helfrich "asked me to stand there, stay there."In response to further questioning, she clarified that she turned to walk away after Helfrich asked for her driver's license, told her to put out her cigarette and put down her soda, and started talking to her passenger.He then told her to stay where she was.

C.The Body Camera Video Recording

The reporter's transcript of the hearing indicates that during Helfrich's testimony, the first three minutes and 46 seconds of his body camera video recording was played for the court and admitted into evidence as People's exhibit 1.We have obtained this exhibit from the superior court and taken judicial notice of the video segment that was admitted into evidence.

At first on this recording, a police motorcycle can be seen in the left-hand part of the screen, parked at a diagonal a few feet from a vehicle, on the vehicle's driver's side and towards its front.A voice—apparently Helfrich's—asks a man smoking a cigarette standing about five to 10 feet in front of the motorcycle—apparently the passenger—why he flicked cigarette ashes out the window.The passenger says he does not know.When Helfrich asks him if he had an ashtray, the passenger turns to a woman—apparently defendant—who is perhaps two feet from Helfrich standing by the open driver's side door.Soon thereafter, Helfrich can be seen filling out a form while asking the passenger his date of birth and middle name, and can be heard calling someone on his police radio.

Helfrich then turns to defendant and says, "I'm smelling alcohol right now."Defendant reaches into her car, turns and shows him a bottle of pink liquid...