People v. Vasilkov CA1/4 ( 2016 )

Filed 6/13/16 P. v. Vasilkov CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A142806
v.
ANTON M. VASILKOV, (San Francisco County
Super. Ct. No. 1404029)
Defendant and Appellant.
After his motion to suppress was denied, defendant Anton M. Vasilkov pled guilty
to one count of battery causing serious bodily injury (Pen. Code § 243, subd. (d)), and
admitted a serious felony allegation. He contends the trial court erred in denying his
motion to suppress because his initial detention was not supported by reasonable
suspicion and that it transformed into a de facto arrest that was not supported by probable
cause. Although we conclude that defendant’s initial detention was proper, his pre-arrest
transportation to an in-the-field identification site constituted an impermissible restraint
on defendant’s personal freedom. Accordingly, we agree that defendant’s Fourth
Amendment rights were violated and we reverse.
1
I. BACKGROUND
A. Facts
The following evidence was received at the preliminary hearing. On January 16,
2014, at approximately 3:10 a.m., Dennis Byas was walking alone through Dolores Park
in San Francisco to where his car was parked on 20th Street, when three young men
approached him. Byas described them all as white or Latino, in their late teens or early
20s, between five foot seven and five foot nine, medium build, and clean-shaven. One
man had long, thick, curly hair.
As Byas walked by the group, one of the men tried to “fist pump” him as a
greeting. Byas kept walking until the three men suddenly surrounded him. The men
started shouting at Byas, grabbed him, pushed him to the ground, and started to go
through his pockets. One stood on Byas’ left side, held a knife against his throat and he
was told not to move. Another had his hand inside of his pocket and was simulating what
Byas believed to be a gun.
The men demanded that Byas empty his pockets; he complied, relinquishing his
car keys and his eye glasses. Looking for more items, the group forced Byas onto his
hands and knees so they could search the rest of his pockets. Byas walked toward 18th
Street, the three men fled on foot in the opposite direction.
A few minutes later, at about 3:14 a.m., Darryl Bass and Jessie Manuel were
sitting on the steps near the bridge leading to Church Street in Dolores Park, with their
friend Patrick who was standing on the nearby train tracks. A man approached them with
a warning that three persons a short distance away were robbing people. Bass could see a
group of three men heading his way as the other man ran towards Church Street and out
of the park.
One of the men from the approaching group, later identified as co-defendant,
Julian Prestegui, walked up to Bass to ask for a cigarette. Bass told Prestegui that he was
smoking his last cigarette, but would give Prestegui his current cigarette when he was
finished with it. Prestegui then demanded, “Give me everything you got.” Bass laughed
in response. One of Prestegui’s associates, later identified as defendant Vasilkov, pulled
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out a knife and asked, “Do you think it’s funny?” Bass replied, “Yes. I think it’s funny.”
Bass then yelled for his friend Patrick. Defendant said, “Your niggers can’t help you
right now.” He also told Bass that he would stab the next person who walked up the
stairs. As defendant, Prestegui, and their unidentified associate began to walk away, Bass
and Manuel walked down the stairs towards where their friend Patrick was located,
telling him that they all needed to leave.
As the three friends ran along the train tracks towards Market Street, Bass noticed
that Prestegui was right behind him. Bass elbowed Prestegui in the face and kept
running; however, he stopped when he noticed Manuel had fallen to the ground. Patrick
went ahead to look for help. Bass proceeded to fight Prestegui and the unidentified third
assailant, while defendant held Manual at knifepoint and demanded everything Manuel
had with him. Manuel gave defendant his wallet and phone.
Defendant then walked over to where his associates were fighting with Bass and
said, “Let’s get out of here.” The suspects fled further into Dolores Park.
B. Suppression Hearing
At about 3:14 a.m., on the morning of January 16, 2014, San Francisco Police
Officer Michele Quema, and her partner Officer Joshua, responded to 18th Street and
Church Street in San Francisco on the report of an “A priority robbery.” As one officer
explained, “A is the highest priority of a call that we shall respond to. It means,
basically, drop everything that you’re doing because this is the most serious offense.”
As their patrol car approached the intersection of 18th and Church Street bordering
Dolores Park, Mr. Byas and two other robbery victims flagged Officers Quema and
Joshua down. Byas told the officers that he had just been robbed by “three Hispanic
males, . . . five feet ten inches tall, with skinny builds, approximately in their 20s,
wearing dark clothing.” Officer Joshua shortly thereafter broadcast this information over
the dispatch system in order to inform other police units responding to the scene.
At about the same time, San Francisco Police Department Officers Justin Woo and
Diane Khuu were also on duty and in uniform, patrolling the Mission District when they
received a dispatch about an “A priority” involving “three Latin males,” who were
3
wearing dark clothing. The dispatch indicated that the suspects had fled into Dolores
Park and that a gun was involved.
Less than two minutes later, Officers Woo and Khuu arrived at the intersection of
Dolores Street and 19th Street, which abuts Dolores Park. The officers got out of the
their patrol car and began a sweep of the park. They had their flashlights lit as they
moved towards the public restrooms located in the middle of the park. Officer Woo was
able to see 100 feet to his left and to his right, including the lights from the nearby
playground. Seeing no one, the officers continued to canvass the area until they reached
the public restrooms.
Within one minute of entering the park, the officers found defendant and co-
defendant, Prestegui, sitting a distance of five to six feet apart on the stairs on the west
side of the public restrooms. With their weapons drawn, Officers Woo and Khuu,
identified themselves as police officers and directed the men to show their hands.
Defendant and Prestegui complied and did not make any attempt to stand up or walk
away. Officer Woo determined that defendant and Prestegui “generally matched the
description” of the suspects to the extent that they were both males wearing dark clothes,
who “looked Latin.” Prestegui was wearing all black. Defendant was wearing black
jeans, a black shirt, and striped shirt or jacket; he was also wearing a red baseball hat.
Officer Woo acknowledged that it was not reported that any of the suspects were wearing
a hat.
After placing defendant and Prestegui in handcuffs, Officer Woo conducted a pat-
down search of Vasilkov to check for weapons. He saw a black cell phone sticking out of
defendant’s pocket. Afterwards, Officer Woo noticed several objects in the area where
the suspects had been sitting. These items included a folding knife laying on the steps
within arm’s reach of where Vasilkov had been sitting, and a set of keys atop a brown
jacket, which was about one foot away from the spot where Prestegui was detained.
Once they were secured, Officer Woo left the suspects with his partner and
another officer, so that he could accompany some of the robbery victims during a cold
show. About ten minutes after the initial detention, Officer Woo met with three victims
4
at the intersection of 18th and Church Streets. The cold shows began approximately five
minutes later at a separate location.1 The police transported defendant and Prestegui in
separate police vehicles to get them to the cold show site. The police also transported the
victims to the cold show site.
Defendant, Prestegui, and at least one other suspect were presented at the cold
shows. At least one of the victims identified defendant or Prestegui as one of the
individuals who had robbed them.
Defendant sought to suppress the items seized from him, particularly the cell
phone, as well as all post-detention witness identifications, including those during the
cold show. Defense counsel argued there was no reasonable suspicion to detain
defendant because he was not a Latin male and was not wearing dark clothing. (2 RT 75-
76.) Defendant and his co-defendant were not engaged in suspicious conduct, did not try
to flee, and complied with the officers’ demands. Moreover, none of the items found in
the suspects’ vicinity at the time of detention was incriminating. Defense counsel also
argued that the officers really did not know how many others were present in the park and
whether any of the suspects had left the park. Defense counsel further asserted that the
transport of defendant and Prestegui to a second location away from the site of their
initial detention was an illegal arrest given there was no probable cause prior to the
identification. Finally, there was no testimony as to when the robberies actually took
place, leaving it unclear whether the suspects “were somehow timely seized in relation to
the actual event . . . .” Thus, the defense maintained there was no reasonable suspicion,
much less probable cause to detain or arrest defendant.
In denying the motion to suppress, the trial court made the following findings:
“The evidence is that the call came in at approximately 3:14. Within minutes, the
officers responded to the specific area where the alleged perpetrators were seen to flee,
which was Delores [sic] Park. The officer testified that upon entering the park he and his
partner used flashlights to scan the area. They proceeded from 19th and Delores [sic] up
1
It is unclear from the record where the cold shows were actually conducted.
5
until the middle of the park to the area of the public restroom using their flashlights to
illuminate the area. [¶] [The officer] testified, without contradiction, that he could see
approximately 100 feet in each direction. He also testified that there was streetlights
which illuminated Delores [sic] Street. That using both the streetlights and the flashlight,
he and his partner saw only two people. The first and only people they saw in the park
were the two people that they detained. [¶] People’s 2 and 3 depict two individuals, and
based on those photographs, one of them is in what appears to be all back [sic], which in
my view is consistent with his testimony that the description was that one of the Latin
males was in dark clothing. The other, from what I can see, is wearing what appears to
[be] black jeans and a black shirt. There is a striped shirt over it, but I certainly see dark
clothing there. [¶] The circumstances were such that the area was not populated by
anyone other than the two individuals; and although the description was that there were
three individuals seen fleeing, two is certainly a subset of three. And under the
circumstances, which was that this was a high priority call, that there was a report that
there was a gun involved with it, that the officers took reasonable steps, first, to simply
detain for purposes of investigating to determine whether or not the two individuals met
the description they had, and that contrary -- I respectfully disagree with the defendant’s
characterization of what followed. [¶] The victims were in close proximity, albeit not
immediately in the vicinity where the two suspects were detained, and the suspects were
not under arrest, but based upon the facts I heard, they were simply moved for purposes
of further investigation, which was reasonable under the circumstances of the offense that
had occurred at 3:15 in the morning and the circumstances that were described. [¶] I do
find it was reasonable for the officers to undertake the investigation that they did, and it’s
my understanding that upon being displayed to the alleged victims, the individuals were
identified. That was the testimony, and therefore, they were, at that point, arrested and
taken to the station.”
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II. DISCUSSION
A. Standard of Review and Applicable Law
The rules for review in a denial of a motion to suppress are well established. This
court reviews the explicit and implicit factual findings to determine if they are supported
by substantial evidence. (People v. Soun (1995) 34 Cal. App. 4th 1499, 1507 (Soun).) We
then exercise our independent judgment to determine if the facts found by the trial court
establish a seizure in violation of the Fourth Amendment. (Ibid.)
A seizure within the meaning of the Fourth Amendment occurs whenever an
individual’s liberty is restrained by the police, either by physical force or by an assertion
of authority to which the individual submits, in circumstances in which a reasonable
person would have believed he or she was not free to leave. (Soun, supra, 34
Cal.App.4th at p. 1515.) Although “detentions” and “arrests” are both seizures under the
Fourth Amendment, the constitutional standard for permissible detentions “is of lesser
degree than that applicable to an arrest.” (People v. Harris (1975) 15 Cal. 3d 384, 389
(Harris).) An officer is justified in detaining a suspect “ ‘if there is an articulable
suspicion that a person has committed or is about to commit a crime.’ ” (Wilson v.
Superior Court (1983) 34 Cal. 3d 777, 784.) On the other hand, probable cause for an
arrest exists only “when the facts known to the arresting officer would lead a person of
ordinary care and prudence to entertain an honest and strong suspicion that the person
arrested is guilty of a crime. [Citations.]” (People v. Price (1991) 1 Cal. 4th 324, 410,
superseded by statute on other grounds as stated in People v. Hinks (1997) 58
Cal. App. 4th 1157, 1161-1165.)
“[A]n investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop. Similarly, the investigative methods
employed should be the least intrusive means reasonably available to verify or dispel the
officer's suspicion in a short period of time. [Citations.] It is the State’s burden to
demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was
sufficiently limited in scope and duration to satisfy the conditions of an investigative
seizure.” (Florida v. Royer (1983) 460 U.S. 491, 500.)
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B. Initial Detention
Defendant contends the police lacked reasonable suspicion to detain him.
According to defendant, the discrepancies between his appearance and the “very general
description” sent out by dispatch significantly undermined the finding that a reasonable
officer in Officer Woo’s position would have had a reasonable suspicion that defendant
was involved in criminal activity.
According to defendant, the police lacked reasonable suspicion to detain him
because his race and clothing did not match the “vague” description of the suspects, i.e.,
three Latin males, wearing dark clothing. Defendant insists inasmuch as he is “a light-
skinned individual of European ancestry,” who was wearing “a distinctive, lighter-
colored, stripped sweatshirt,” as well as a hat, Officer Woo lacked reasonable suspicion
to detain him. We disagree.
Officer Woo testified that, although he was not sure of his racial or ethnic
background, defendant “looked Latin . . . .” The trial court implicitly found that Officer
Woo was a credible witness, and substantial evidence supports its credibility
determination. (People v. Ramos (2004) 34 Cal. 4th 494, 505.)
Moreover, it is undisputed that defendant was wearing black pants and a black
undershirt. That defendant was also wearing a hat and stripped sweatshirt does not
controvert these facts. An exact match is not required. (People v. Craig (1978) 86
Cal. App. 3d 905, 911 (Craig).) Rather, “a general description has been held sufficient
justification for stopping and questioning persons meeting that description.” (Craig,
supra, 86 Cal.App.3d at p. 911.) In Craig, police officers were acting on a general
description of three robbery suspects. (Id. at pp. 910-911.) There, the victim described
the suspects as follows: “The first was a male Negro, small Afro, five feet, nine inches
tall, medium build, blue [L]evis. The second, a male Negro, medium Afro, yellow
beanie-type hat with ‘Cheerios’ on the back, and a torn shirt. The third, a male Negro
with a small Afro. When stopped, at least one suspect had pink curlers in his hair. There
was no ‘Cheerios’ beanie and no torn shirt.” (Id. at p. 912, fn. 1.) Despite these
discrepancies, the court held that the officers acted reasonably in stopping and initially
8
detaining the defendants. (Id. at p. 912.) The court reasoned that even though the
defendants “did not perfectly match the general description given, however, since the
descriptions and appearances were substantially the same, and coincided in the
discernable factors (race, sex, build, number), . . . the officers acted reasonably, under the
circumstances . . . .” (Id. at pp. 911-912.)
In the instant case, neither defendant’s race nor his clothing was an exact match.
Nevertheless, defendant was near the scene of a recently reported crime in the company
of another person matching the age, race, and sex of the first described suspect. This
evidence, considered in light of the totality of the circumstances, provided Officer Woo
with “specific articulable facts” demonstrating “some objective manifestation” that
appellant was involved in criminal activity at the time of his detention. (People v. Souza
(1994) 9 Cal. 4th 224, 231.) While defendant insists that absence of a specific time of the
robberies, together with the discrepancies in his clothing and race demonstrate the lack of
reasonable suspicion, these facts do not diminish the probative value of the other
evidence supporting the trial court’s contrary finding. (People v. Ramos, supra, 34
Cal.4th at p. 505.) On this record, the officer could reasonably believe criminal activity
involving defendant was afoot, thereby justifying the decision to detain him.
Finally, defendant further insists that even if he appeared to be “Latino,” race
cannot create reasonable suspicion. Defendant asserts that to find otherwise would result
in impermissible racial profiling. He relies on In re Tony C. (1978) 21 Cal. 3d 888 (Tony
C.) and People v. Durazo (2004) 124 Cal. App. 4th 728 (Durazo). Each, however, is
distinguishable. In Tony C., the officers were acting a on a “day-old burglary report”
when they detained the defendant while he was merely walking along the sidewalk; they
had no particularized basis for suspecting his involvement in any crime, but only “a
combination of hunch and curiosity.” (Tony C., supra, 21 Cal.3d at pp. 896-898.) But
here, the officers were responding to a police dispatch made a very short time before, and
reasonably believed the persons they found at the scene could have been the persons
described in the dispatch.
9
In Durazo, the officer detained two young Hispanic males merely for apparently
looking toward an apartment complex where four days earlier a resident had claimed
Mexican gang members were going to attack him; as in the prior case, the detained
persons did not do anything suggestive of criminal activity within the officer’s view.
(Durazo, supra, 124 Cal.App.4th at pp. 732-734.) Here, the officers responded almost
immediately to a reported robbery involving a gun and found people on the scene who,
judging from the initial information given to the officers, looked as though they could
have been involved in that robbery.
Although reliance on race, without more, amounts to impermissible racial profiling
(Pen. Code, § 13519.4, subds. (d), (e)), here the responding officers were acting on more
than race. Unlike in Tony C. and Durazo, the officers were not acting on a mere hunch
that defendant and his companion were involved in criminal activity. Rather, the officers
immediately responded to a dispatch call regarding an “A priority robbery,” involving a
gun and encountered two Latino appearing men in Dolores Park just after 3:00 a.m.,
wearing similar clothing. The determination of reasonableness in the context of the
Fourth Amendment is “inherently case-specific . . . .” (Durazo, supra,124 Cal.App.4th at
p. 735.) Under the totality of the circumstances of the instant case, it was objectively
reasonable for the officers to believe that defendant had been involved in possible
criminal activity.
C. Scope of the Detention
We begin by noting that although defendant was handcuffed at the time of the
initial detention and subsequent transportation, that handcuffing did not necessarily
transform the detention into an arrest. (People v. Celis (2004) 33 Cal. 4th 667, 675
(Celis).) This does not mean, however, that handcuffing a suspect will never transform a
detention into an arrest. The issue is whether the use of handcuffs during a detention was
reasonably necessary under all of the circumstances of the detention. (In re Carlos
(1990) 220 Cal. App. 3d 372, 385.) We look to “the facts known to the officers in
determining whether their actions went beyond those necessary to effectuate the purpose
of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.”
10
(Celis, supra, 33 Cal.4th at pp. 675-676.) Here, the officers detained defendant following
a call regarding an “A priority robbery,” which is the most serious type of robbery
dispatch. The officers had reason to believe that more than one suspect was involved and
that a gun had been used during the robberies. Additionally, as it was just past 3:00 a.m.,
it was very dark outside. In short, the evidence suggests that the officers had a reasonable
basis to believe that defendant posed a danger to them and that handcuffing him was
necessary to effectuate the purpose of the stop, i.e., to determine whether defendant had
been involved in the reported robberies.
Once the officers decided there were reasonable grounds to detain defendant, they
transported him to an in-the-field identification site. Thus, we must decide if the pre-
arrest transportation of defendant to the in-field identification site was a violation of his
Fourth Amendment rights. In making this determination, we find the California Supreme
Court’s decision in Harris, supra, 15 Cal. 3d 384, instructive. In Harris, as well as here,
“[t]he principal difficulty . . . arises from the police conduct following the detention when
circumstances known to the police placed the case in that gray area in which the facts
justify measures beyond detention but short of arrest . . . . [¶] The propriety of . . . an in-
the-field transportation of suspects prior to arrest poses the principle issue in the case.”
(Harris, supra, 15 Cal.3d at pp. 389-390.)
Harris went on to explain: “[W]e are disinclined to hold that under no
circumstances short of probable cause to arrest may an officer transport a suspect to
another location for further interrogation or possible identification . . . . [¶] We can
conceive of factual situations in which it might be quite reasonable to transport a suspect
to the crime scene for possible identification . . . . Similarly, the surrounding
circumstances may reasonably indicate that it would be less of an intrusion upon the
suspect’s rights to convey him speedily a few blocks to the crime scene, permitting the
suspect’s early release rather than prolonging unduly the field detention. [¶] Ordinarily
there exist less intrusive and more reasonable alternatives to pre-arrest transportation.
The officers may call or escort the witness to the detention scene for an immediate
viewing of the suspect, or if they are able to procure satisfactory identification from the
11
suspect, arrangements may be made for a subsequent confrontation with the witness. In
addition, the consent of the suspect may be sought. As . . . suggested in People v.
Mickelson [(1963)] 59 Cal. 2d 448, 454, rather than conduct an illegal car search the
officers could have requested defendant ‘to accompany the officers the few blocks to the
[crime scene] . . . for possible identification . . . .’ [Citations.]”
The California Supreme Court held the transportation and continued interrogation
of the defendant without exploring any other option violated the Fourth Amendment.
(Harris, supra, 15 Cal.3d at p. 391.)
In re Dung T. (1984) 160 Cal. App. 3d 697, 704, involved the investigation into a
home invasion robbery. The perpetrators were identified as six Vietnamese men in their
early twenties, with no further description. (Id. at p. 705.) The night of the robbery a
witness identified an unoccupied vehicle as one that was used in the robbery. (Ibid.) The
following night an officer observed the vehicle being driven with eight Vietnamese
youths inside. (Ibid.) The vehicle was stopped and the occupants were transported to the
police station where Dung was identified as the driver of the getaway vehicle. (Ibid.)
The appellate court reversed on other grounds but held for the guidance of the trial court
that the detention violated the Fourth Amendment. (Id. at pp. 711-712.)
In analyzing the Fourth Amendment violation, In re Dung T. explained: “The
record is barren of any attempts by the police to employ methods of investigative
detention less intrusive than immediately transporting appellant and his companions to
the police station for a lineup identification. In fact, [the officer] had standing orders to
bring the car and its occupants to the police station as soon as it was occupied. The car
was under surveillance for at least a day but no attempt was made to ascertain its owner.
No attempt was made to bring witnesses to the detention scene for an immediate viewing
of the suspects. Upon discovery of the Dodge the previous evening, the police brought
[the witness] to the scene to identify the car. No reason appears for not bringing him to
the scene the following evening to determine if he could identify any of the occupants of
the car. The record discloses no evidence the police attempted to question the suspects,
obtain their identifications or obtain their consent to being transported to the police
12
station for a lineup. Only on arrival at the station did the police explain to the suspects
what they were doing. [¶] . . . [¶]
“The record shows ‘no attempt was made here to employ procedures which might
comply with the requirements of the Fourth Amendment: . . .’ [Citation.] The People
have failed ‘to demonstrate that the seizure it seeks to justify on the basis of a reasonable
suspicion was sufficiently limited in scope and duration to satisfy the conditions of an
investigative seizure.’ [Citation.] They have not shown appellant’s detention was a ‘rare
case’ justifying the magnitude of intrusion involved. Thus, appellant’s detention violated
the Fourth Amendment and, through the due process clause, the Fourteenth Amendment
of the United States Constitution.” (In re Dung T., supra, 160 Cal.App.3d at pp. 715-
716.)
In In re Carlos M., supra, 220 Cal.App.3d at pp. 376-377, the victim was sexually
assaulted. The defendant was lawfully detained and then transported to the hospital
where the victim was undergoing a sexual assault examination. (Id. at pp. 382-385.) In
rejecting the defendant’s claim that the Fourth Amendment was violated, the court
explained, as follows: “We conclude, under the facts of this case, the transportation was
reasonable. Because [the officer] spoke no Spanish, the language barrier prevented him
from attempting to obtain consent. The absence of identification, or even a residential
address, rendered the ‘arrangements for subsequent confrontation’ option moot.
“The only option reasonably available to [the officer] was to bring the victim and
the suspects together as expeditiously as possible. [The officer] understood that at the
time he wished to arrange an in-field identification, the victim was undergoing a rape-
victim examination. [The officer] (from prior experience) believed this would require
about two hours. Although the victim was not suffering severe physical injuries, she was
presumably ‘unable to be taken promptly to view the suspects’ in light of the trauma she
had endured and the exigencies a rape-victim examination entails. To bring the victim to
the suspects probably would have required [the officer] to detain them for two hours to
await the completion of the examination, or to interrupt the examination and seek to
transport the victim.
13
“The option selected by [the officer]—transporting the suspects to the hospital
rather than attempting to transport the witness from the hospital to the location of the
suspects—was eminently reasonable. Even assuming it would have been possible to
interrupt the hospital examination, time would have been wasted in finding the victim and
causing termination of the examination. Since transportation time in either event would
be the same, the likely detention of the suspects would be less by virtue of the option
selected by [the officer]—taking the suspects to the witness. [Fns. omitted.]” (In re
Carlos M., supra, 220 Cal.App.3d at pp. 383–384.)
Relying on Celis, supra, 33 Cal. 4th 667 and Soun, supra, 34 Cal. App. 4th 1499,
the People argue that defendant’s pre-arrest transportation did not result in an
impermissible de facto arrest because the officers used the least intrusive means available
under the circumstances. These cases are distinguishable.
The People’s reliance on Celis is misplaced because that case did not involve pre-
arrest transportation. Rather, there the defendant, a suspected drug trafficker, was
handcuffed and forced to sit in his yard while the police performed a protective sweep of
his residence. (Celis, supra, 33 Cal.4th at p. 676.) Finding the officers acted diligently
and swiftly, using the least restrictive means reasonably available, the court concluded
the detention did not convert into a de facto arrest. (Id. at pp. 675-676.)
In Soun, supra, 34 Cal. App. 4th 1499, the defendant “was removed from the car at
gunpoint by a large number of police officers, was forced to lie on the ground, was
handcuffed and placed in a patrol car, was transported from the site of the stop a distance
of three blocks to a parking lot, and then was held at the parking lot for up to an
additional thirty minutes, all without being told why he had been stopped or being
permitted to communicate with his confederates.” (Id. at p. 1517.) The defendant
argued, among other things, that “even if the initial stop were regarded as a detention, the
detention evolved into a de facto arrest when the individuals, seated in separate police
cars, were moved three blocks to a parking lot that was known to police and had
apparently been used by them, as an assembly area, on previous occasions.” (Id. at
p. 1519.) In rejecting the defendant’s claim, the court found three-block transportation
14
did not elevate the detention to an arrest because the reasons offered for moving the
suspects were “wholly consistent with the known circumstances and with common
sense.” (Id. at p.1520.) In Soun, one of the responding officers explained that they had
been “ ‘directed . . . to move to an assembly point because we were blocking the roadway
and there [were] so many cars. [¶] . . . [¶] It was typical procedure. [¶] . . . [¶] It had
nothing to do with the arrest situation. It was merely for officer’s safety and to clear the
roadway.’ ” (Ibid.) As such the court concluded that “[a] three-block transportation to an
essentially neutral site for these rational purposes did not operate to elevate Soun’s
custodial status from detention to arrest.” (Ibid.)
Here, unlike in Soun, the record is devoid of any rational explanation for
transporting defendant to the in-the-field identification site. No officer was asked, and
none volunteered, any reasons for moving defendant. As in In re Dung T., supra, 160
Cal. App. 3d 697, “[t]he record is barren of any attempts by the police to employ methods
of investigative detention less intrusive than immediately transporting [defendant] and his
companion[]” ( id. at p. 715) to the in-the-field identification site. “No attempt was made
to bring witnesses to the detention scene for an immediate viewing of the suspects.”
(Ibid.) No reason appears why the identification site was preferable to the detention site.
The record also disclosed no evidence that the police attempted to obtain defendant’s
consent before transporting him to the identification site.
“The record shows ‘no attempt was made here to employ procedures which might
comply with the requirements of the Fourth Amendment: . . .’ [Citation.] The People
have failed ‘to demonstrate that the seizure it seeks to justify on the basis of a reasonable
suspicion was sufficiently limited in scope and duration to satisfy the conditions of an
investigative seizure.’ [Citation.] They have not shown [defendant’s] detention was a
‘rare case’ justifying the magnitude of intrusion involved.” (In re Dung T., supra, 160
Cal.App.3d at pp. 715-716.)
We can surmise that the officers decided to move both the suspects and the victims
to another location due to safety concerns. However, as a reviewing court, we cannot
speculate as to what the officers might have thought. Rather, it was the prosecution’s
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burden to introduce evidence to establish that the investigative detention was sufficiently
limited in scope. (Florida v. Royer, supra, 460 U.S. at 500.) This they did not do.
Thus, [defendant’s] detention violated the Fourth Amendment and, through the
due process clause, the Fourteenth Amendment of the United States Constitution.” (In re
Dung T., supra, 160 Cal.App.3d at p. 716.) Accordingly, the trial court erred in denying
the motion to suppress.2
III. DISPOSITION
The judgment is reversed and the cause remanded to the superior court. The trial
court is directed to vacate its order denying the motion to suppress and enter a new order
granting the motion. The trial court is directed to vacate the guilty plea if defendant
makes an appropriate motion within 30 days after the remittitur is issued. In that event,
the superior court should reinstate the original charges and allegations contained in the
information if the prosecution so moves. If defendant does not move to vacate the plea,
the trial court is directed to reinstate the original judgment.
2
While the field identification should be suppressed, subsequent identifications of
defendant need not be suppressed if the witnesses have an independent recollection of the
crime. (People v. Rodriguez (1993) 21 Cal. App. 4th 232, 241.)
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_________________________
Reardon, J.
We concur:
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Ruvolo, P.J.
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Streeter, J
17