People v. Tacardon

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Appellant,
v.
LEON WILLIAM TACARDON,
Defendant and Respondent.
S264219
Third Appellate District
C087681
San Joaquin County Superior Court
STK-CR-FER-2018-0003729
December 29, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Kruger, Jenkins,
and Guerrero concurred.
Justice Groban filed a concurring and dissenting opinion.
Justice Liu filed a dissenting opinion.
PEOPLE v. TACARDON
S264219
Opinion of the Court by Corrigan, J.
A sheriff’s deputy patrolling after dark saw three people
sitting in a legally parked car in a residential neighborhood,
smoking something. He pulled up behind the car, illuminated it
with a spotlight, and approached on foot. We granted review to
examine the significance of the deputy’s use of a spotlight in this
circumstance. We conclude that shining a spotlight for
illumination does not ipso facto constitute a detention under the
Fourth Amendment. Rather, the proper inquiry requires
consideration of the totality of the circumstances, including the
use of a spotlight.
I. BACKGROUND
Sheriff’s Deputy Joel Grubb testified to the following facts
at the preliminary hearing, where defendant Leon William
Tacardon first moved to suppress evidence.
On a March evening, around 8:45 p.m., in a residential
Stockton neighborhood, Grubb was on patrol in a marked car.
The area was known for narcotics sales and weapons possession.
While patrolling, Grubb had both his headlights and high beams
on for “extra visibility.” He drove past a BMW legally parked in
front of a residence, in the vicinity of a streetlight. The car’s
engine and headlights were off; smoke emanated from slightly
open windows. He saw three people inside and made eye contact
with the occupants as he drove past them. Grubb made a U-
turn, parked about 15 to 20 feet behind the BMW, and turned
1
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
on his spotlight. He did not activate his siren or emergency
lights or issue any commands to the car’s occupants. He sat in
his patrol car for 15 to 20 seconds while he informed dispatch of
his location. He then approached the BMW at a walking pace.
He did not draw a weapon.
As the deputy approached, a woman sitting in the
backseat “jumped out” of the BMW, closing the door behind her.
The deputy testified that “[i]t was very quick and kind of abrupt
the way that she opened the door and quickly stepped out. I felt
it was unusual.” She walked towards the back of the BMW, and
Grubb asked her what she was doing. She responded, “I live
here.” Concerned for his safety, the deputy directed the woman
to stand near the sidewalk behind the BMW where he could see
her. He spoke in a calm and moderate voice and did not draw a
weapon. The woman complied.
Grubb continued to walk toward the car. As he came
within a few feet of the BMW, he smelled marijuana smoke
coming from inside. The car’s rear windows were tinted. Even
with the spotlight on, Grubb had to use a flashlight to illuminate
the car’s interior. He could see one large and two smaller clear
plastic bags on the rear passenger floorboard. They contained a
green leafy substance.
Tacardon sat in the driver’s seat. Upon request, both he
and the front seat passenger identified themselves. Only the
passenger produced identification. After Grubb saw a partially
burned, hand-rolled cigarette in the center console, he asked
Tacardon about that item and the leafy substance in the bags.
Asked whether he was on probation or parole, Tacardon said he
was on probation. The discussion lasted two to three minutes.
2
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Telling Tacardon to remain seated, Grubb returned to his
patrol car. A records search confirmed that Tacardon was on
probation with a search condition. After additional officers
arrived, the deputy placed Tacardon in the back of the patrol car
and searched the BMW. He seized the three plastic bags in the
backseat and a vial containing 76 pills. A search incident to
arrest revealed that Tacardon carried $1,904 in cash.
Laboratory analysis confirmed that the bags contained 696
grams of marijuana, and the pills were hydrocodone. The
amount of drugs, their presence in a car, and the accompanying
cash were factors consistent with possession for sale.
Tacardon was charged with possession for sale of
hydrocodone and marijuana. (Health & Saf. Code, §§ 11351,
11359, subd. (b).) At the preliminary hearing, the magistrate
denied Tacardon’s motion to suppress the evidence (Pen. Code,
§ 1538.5) and held him to answer. The magistrate reasoned: “it
was a police contact . . . . [I]n other words, he didn’t stop the
defendant. There certainly was a point at which the defendant
wasn’t free to go but that still would not preclude it being
characterized as a contact.” The deputy’s observation of a large
quantity of what appeared to be marijuana in plain view in the
back of the car justified further investigation.
Tacardon renewed his motion to suppress in conjunction
with a motion to dismiss the information. (Pen. Code, §§ 995,
subd. (a)(2)(B), 1538.5, subds. (i), (m); People v. Lilienthal (1978)
22 Cal.3d 891, 896–897; People v. McDonald (2006) 137
Cal.App.4th 521, 528–529.) Based on the preliminary hearing
record, the superior court granted the motion and dismissed the
charges. The court held that Deputy Grubb engaged in a
consensual encounter when he initially pulled behind
3
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Tacardon’s car and turned on his spotlight. But his detention of
the female passenger effectuated a detention of Tacardon.
The Court of Appeal reversed. It agreed with the superior
court that Grubb’s position behind Tacardon’s car, spotlight
illumination, and approach on foot did not “manifest a sufficient
show of police authority to constitute a detention.” (People v.
Tacardon (2020) 53 Cal.App.5th 89, 99 (Tacardon).) The court
noted that the deputy did not block defendant’s car, use his
emergency lights, or immediately and aggressively question
Tacardon. (Id. at pp. 98–99.) It concluded: “Simply put,
although a person whose vehicle is illuminated by police
spotlights at night may well feel he or she is ‘the object of official
scrutiny, such directed scrutiny does not amount to a
detention.’ ” (Id. at pp. 99–100, quoting People v. Perez (1989)
211 Cal.App.3d 1492, 1496 (Perez).) However, it rejected the
superior court’s conclusion that Grubb’s interaction with the
female passenger transformed the encounter with Tacardon into
a detention. It reasoned that there was “no evidence [Tacardon]
observed the deputy’s interaction with [the passenger], or that
the deputy conveyed to defendant that he, like [his passenger],
was required to remain.” (Tacardon, at p. 100.)
In analyzing the deputy’s initial approach, the Court of
Appeal expressly disagreed with People v. Kidd (2019) 36
Cal.App.5th 12 (Kidd), which found an unlawful detention on
similar facts. In Kidd, a patrolling officer saw two men parked
on a residential street with the car’s fog lights on at 1:30 in the
morning. (Id. at p. 15.) He drove past the car, made a U-turn,
and parked 10 feet behind the vehicle. The officer shined two
spotlights on the parked car and approached on foot. (Id. at p.
16.) The appellate court found that Kidd, who was in the
driver’s seat, was detained when the officer pulled up behind the
4
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
parked car and turned on the patrol car’s spotlights. (Id. at pp.
21–22.) The court observed: “motorists are trained to yield
immediately when a law enforcement vehicle pulls in behind
them and turns on its lights. Regardless of the color of the lights
the officer turned on, a reasonable person in Kidd’s
circumstances ‘would expect that if he drove off, the officer
would respond by following with red light on and siren
sounding . . . .’ ” (Id. at p. 21, quoting People v. Bailey (1985) 176
Cal.App.3d 402, 406 (Bailey).) The court further observed that
“any ambiguity was removed when the officer more or less
immediately exited his patrol vehicle and began to approach
Kidd’s car. Although the officer’s approach was, according to
record, not made in a particularly aggressive or intimidating
manner, a reasonable person in Kidd’s circumstances would not
have felt free to leave.” (Kidd, at pp. 21–22.)
We granted review to resolve this conflict in the Courts of
Appeal.
II. DISCUSSION
The outcome here turns on the distinction between a
consensual encounter and a detention. Deputy Grubb did not
stop the car. It was already parked on the street when he saw
it. Officers can approach people on the street and engage them
in consensual conversation. (People v. Brown (2015) 61 Cal.4th
968, 974 (Brown).) So merely walking up to someone in a parked
car is not a detention. The issue presented is whether there are
additional circumstances, the totality of which transformed the
encounter into a detention.
“An officer may approach a person in a public place and
ask if the person is willing to answer questions. If the person
voluntarily answers, those responses, and the officer’s
5
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
observations, are admissible in a criminal prosecution.
[Citations.] Such consensual encounters present no
constitutional concerns and do not require justification.
[Citation.] However, ‘when the officer, by means of physical
force or show of authority, has in some way restrained the
liberty of a citizen,’ the officer effects a seizure of that person,
which must be justified under the Fourth Amendment to the
United States Constitution. [Citations.] 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” ’ [citation], and if the
person actually submits to the show of authority.” (Brown,
supra, 61 Cal.4th at p. 974.)
We consider the totality of the circumstances in
determining whether a detention occurred. (Florida v. Bostick
(1991) 501 U.S. 429, 437 (Bostick); Michigan v. Chesternut
(1988) 486 U.S. 567, 572 (Chesternut); Brown, supra, 61 Cal.4th
at p. 980.) Relevant circumstances may include: the presence
of multiple officers, an officer’s display of a weapon, the use of
siren or overhead emergency lights, physically touching the
person, the use of a patrol car to block movement, or the use of
language or of a tone of voice indicating that compliance with
the officer’s request is compelled. (Chesternut, at p. 575; In re
Manuel G. (1997) 16 Cal.4th 805, 821.) The facts are reviewed
objectively. As People v. Franklin (1987) 192 Cal.App.3d 935(Franklin) explained, “The officer’s state of mind is not relevant
. . . except insofar as his overt actions would communicate that
state of mind.” (Id. at p. 940.) Likewise, “the individual citizen’s
subjective belief [is] irrelevant . . . .” (Manuel G., at p. 821.)
6
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Where, as here, a suppression motion is made before a
magistrate in conjunction with a preliminary hearing and no
new evidence is presented in superior court, we are “concerned
solely with the findings of the [magistrate].” (People v. Gentry
(1992) 7 Cal.App.4th 1255, 1262.) We defer to the magistrate’s
express and implied findings of fact if supported by substantial
evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301;
People v. Romeo (2015) 240 Cal.App.4th 931, 941–942; People v.
Hua (2008) 158 Cal.App.4th 1027, 1033; Gentry, at p. 1262.) We
independently assess whether the challenged search or seizure
violates the Fourth Amendment, applying federal constitutional
standards. (Brown, supra, 61 Cal.4th at p. 975; People v. Lenart
(2004) 32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd.
(f)(2).)
It is clear that Tacardon was detained at some point. The
question is when. The timing is critical to the outcome. The
parties agree that Deputy Grubb had no reasonable suspicion of
criminal activity before he smelled marijuana smoke and saw
what appeared to be bags of marijuana in the backseat. So if
Tacardon was detained before that point, the action was
unjustified and evidence subsequently discovered during the
deputy’s search was subject to suppression. (Terry v. Ohio
(1968) 392 U.S. 1, 12, 15, 21–22.)
A. Pulling Behind, Activating Spotlight, and
Approaching the Parked Car
In Brown, supra, 61 Cal.4th 968, the circumstances were
these. At 10:37 p.m., a 911 caller reported that more than four
people were fighting in an alley behind his house, and someone
said they had a loaded gun. The dispatcher sent out this
information and Deputy Geasland responded, using lights and
siren. (Id. at pp. 972–973.) As he drove down the alley,
7
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Geasland saw a car driving toward him and away from the
reported location. Geasland yelled to the driver, “ ‘Hey. Did you
see a fight?’ ” (Id. at p. 973.) Brown drove on without
responding. Seeing no one else in the alley, Geasland drove
after Brown. When he saw Brown’s car parked nearby, he
stopped behind it and activated the patrol car’s colored
emergency lights. He approached and spoke to Brown, whom he
arrested for driving under the influence. (Ibid.) We concluded
that Brown was detained when the deputy stopped behind his
parked car and turned on the patrol car’s overhead emergency
lights. Observing that “[t]he Supreme Court has long
recognized that activating sirens or flashing lights can amount
to a show of authority” (id. at p. 978), we concluded that, under
the circumstances presented, “a reasonable person in Brown’s
position would have perceived Geasland’s actions as a show of
authority, directed at him and requiring that he submit by
remaining where he was. As a sister-state court has observed:
‘We see little difference, from the perspective of the occupants in
the vehicle, [between] turning on the blue lights behind a
moving vehicle and turning on the blue lights behind a parked
vehicle. The lights still convey the message that the occupants
are not free to leave.’ ” (Ibid., quoting State v. Gonzalez
(Tenn.Crim.App. 2000) 52 S.W.3d 90, 97.)
Brown did not, however, adopt a bright line rule that “an
officer’s use of emergency lights in close proximity to a parked
car will always constitute a detention of the occupants.” (Brown,
supra, 61 Cal.4th at p. 980.) Instead, we emphasized such an
inquiry “ ‘must take into account “ ‘all of the circumstances
surrounding the incident’ ” in each individual case.’ ” (Ibid.) We
gave the following example: “a motorist whose car had broken
down on the highway might reasonably perceive an officer’s use
8
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
of emergency lights as signaling that the officer has stopped to
render aid or to warn oncoming traffic of a hazard, rather than
to investigate crime. Ambiguous circumstances may be clarified
by whether other cars are nearby or by the officer’s conduct
when approaching.” (Ibid.) We observed, on the facts before us,
that “no circumstances would have conveyed to a reasonable
person that Deputy Geasland was doing anything other than
effecting a detention. Under the totality of these circumstances,
Brown was detained when Geasland stopped behind the parked
car and turned on his emergency lights.” (Ibid.)
This case involves the use of a spotlight, rather than red
and blue emergency lights. Accordingly, we consider how the
use of a spotlight affects the analysis of whether a detention took
place.
Several Courts of Appeal have found the distinction
between a spotlight and red and blue emergency lights
significant. In Perez, supra, 211 Cal.App.3d 1492, an officer
pulled up facing the defendant’s parked car, leaving room for the
defendant to drive away, and activated the patrol car’s high
beams and spotlights. The officer walked up to the car, knocked
on the window, identified himself, shined a flashlight into the
car, and asked the defendant to roll the window down. The
officer immediately smelled marijuana. (Id. at pp. 1494–1495.)
The Court of Appeal found no detention, noting that the officer
had not blocked the defendant’s car or activated the patrol car’s
emergency lights. It further reasoned that, “[w]hile the use of
high beams and spotlights might cause a reasonable person to
feel himself the object of official scrutiny, such directed scrutiny
does not amount to a detention.” (Id. at p. 1496.)
9
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
In People v. Rico (1979) 97 Cal.App.3d 124, an officer
investigating a recent shooting saw a car driving on the freeway
that matched the description of a suspect vehicle. The officer
pulled alongside the car and shined a spotlight on it. He then
dropped back and followed the car for approximately five
minutes without activating his emergency lights. The driver
eventually pulled over on his own, and the officer stopped
several car lengths behind, again turned on his spotlight, and
engaged the car’s occupants. He ultimately recovered a rifle, the
butt of which he saw sticking out from under the driver’s seat.
(Id. at pp. 128–129.) The appellate court concluded that the
officer’s initial “momentary use of the spotlight” to observe the
suspect vehicle’s occupants as he was driving next to them was
not a detention “in the absence of flashing lights, sirens or a
directive over the loudspeaker.” (Id. at p. 130.) Indeed, the
officer “immediately pulled back without any show of authority.”
(Ibid.)
In Franklin, supra, 192 Cal.App.3d 935, an officer saw the
defendant walking in a high crime area wearing a full-length
camouflage jacket on a warm summer evening. Finding this
odd, the officer shined a spotlight on the defendant and parked
the patrol car directly behind him. The defendant approached
the officer and asked, “ ‘What’s going on?’ ” (Id. at p. 938.) He
was sweaty and “ ‘jittery.’ ” (Ibid.) When the officer asked the
defendant to remove his hands from his pockets, he saw what
appeared to be blood on the defendant’s hands and a vial in his
pocket containing white powder. The defendant fled and was
detained. (Ibid.) The Court of Appeal concluded that shining a
spotlight on the defendant and parking behind him was not a
detention: “the officer did not block [the defendant’s] way; he
directed no verbal requests or commands to [the defendant].
10
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Further, the officer did not alight immediately from his car and
pursue [the defendant]. Coupling the spotlight with the officer’s
parking the patrol car, [the defendant] rightly might feel himself
the object of official scrutiny. However, such directed scrutiny
does not amount to a detention.” (Id. at p. 940.)
A survey of federal and sister-state authorities yields
similar results. (U.S. v. Campbell-Martin (8th Cir. 2021) 17
F.4th 807, 811–812, 814 [no detention where officer parked two
spots away from the defendant’s car, shined a spotlight on it,
and approached on foot]; U.S. v. Tafuna (10th Cir. 2021) 5 F.4th
1197, 1199, 1201–1202 [no detention where officer parked with
his patrol car at an angle to the defendant’s driver’s side door,
activated a bar of “takedown” lights, and approached the
defendant’s car]; see also id. at p. 1201 [citing cases from the 1st,
7th, 8th, and 9th Cir.]; U.S. v. Tanguay (1st Cir. 2019) 918 F.3d
1, 2–3, 7–8 (Tanguay) [no detention where officer parked about
10 feet behind the defendant’s car, activated his floodlights, and
approached on foot]; People v. Cascio (Colo. 1997) 932 P.2d 1381,
1382–1383, 1386–1388 (Cascio) [no detention where two
deputies parked about 10 feet behind defendant’s van, trained a
spotlight on it, and approached on foot].) Applying the totality
of the circumstances test to the record before them, these courts
held there had been no detention despite the use of a spotlight.
(But see U.S. v. Delaney (D.C. Cir. 2020) 955 F.3d 1077, 1079–
1080, 1082–1083 [detention occurred where officers parked
within a few feet of the nose of the defendant’s car in a narrow
parking lot, significantly restricting the defendant’s movement,
and activated their “take-down light”].)
As noted, Kidd, supra, 36 Cal.App.5th 12 came to a
contrary conclusion based on facts similar to those presented
here. In that case a patrolling officer saw two men parked on a
11
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
residential street with the car’s fog lights on at 1:30 in the
morning. The officer decided to check and see if the occupants
were stranded, “ ‘or what exactly they[ were] doing.’ ” (Id. at p.
15.) He drove past the car, made a U-turn and parked 10 feet
behind the vehicle, shining two spotlights on it. As he
approached the car, he smelled marijuana smoke and asked the
men what they were doing. Kidd was in the driver’s seat. The
passenger was seen attempting to hide bags of suspected
marijuana. The officer asked if either man was on probation or
parole. When Kidd admitted he was on probation, the officer
told both men to leave the car and sit in the patrol vehicle. A
subsequent probation search revealed packaged marijuana, a
digital scale, a pistol with a serial number removed, and 142
alprazolam pills. (Id. at pp. 15−16.)
The Kidd court held the defendant was detained without
reasonable suspicion “as soon as the officer pulled in behind him
and turned his spotlights on him.” (Kidd, supra, 36 Cal.App.5th
at p. 22.) Kidd began by acknowledging the authority of Rico
and Franklin that, without more, the mere act of parking behind
someone “would not reasonably be construed as a detention,” nor
would shining a spotlight on a person. (Id. at p. 21.) It also
acknowledged that the officer did not block the car, activate
emergency lights, or approach in an aggressive or intimidating
manner. (Id. at pp. 21–22.) The court nonetheless concluded
that the defendant was detained under the totality of the
circumstances. (Id. at p. 21.) Quoting People v. Garry (2007)
156 Cal.App.4th 1100, 1111−1112 (Garry) (see discussion, post,
at pp. 21–22), it concluded the “officer’s ‘show of authority’ was
so intimidating as to communicate to any reasonable person
that he or she was ‘ “ ‘not free to decline [his] requests or
otherwise terminate the encounter.’ ” ’ ” (Kidd, at p. 21.) As for
12
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
the significance of the spotlights, the court reasoned: “motorists
are trained to yield immediately when a law enforcement vehicle
pulls in behind them and turns on its lights. Regardless of the
color of the lights the officer turned on, a reasonable person in
[the defendant’s] circumstances ‘would expect that if he drove
off, the officer would respond by following with red light on and
siren sounding.’ ” (Kidd, at p. 21, quoting Bailey, supra, 176
Cal.App.3d at p. 406.)
The Kidd court’s discussion of the spotlight differs from
the other appellate court decisions. By concluding that a
reasonable person would not feel free to leave when an officer
pulls in behind the person’s parked car and turns on the patrol
car’s lights, “[r]egardless of the color of the lights the officer
turned on” (Kidd, supra, 36 Cal.App.5th at p. 21), the court
described the use of a spotlight in this circumstance as
essentially indistinguishable from the activation of red and blue
emergency lights. We disagree. As other courts have held, the
use of a spotlight generally conveys a different meaning to a
reasonable person than the use of a patrol car’s emergency
lights. Red and blue lights are almost exclusively reserved for
emergency and police vehicles. (See Veh. Code, §§ 21055, subd.
(b), 25258, subd. (b)(1), 25269.) An officer’s use of flashing red
lights, or combination of red and blue lights, behind a vehicle
typically conveys a command to stop. (Brown, supra, 61 Cal.4th
at p. 978; but see id. at p. 980.) Indeed, a motorist may not be
convicted of evading police unless a red light is displayed. (Veh.
Code, § 2800.1, subd. (a)(1); People v. Hudson (2006) 38 Cal.4th
1002, 1008.)
By contrast, a reasonable person would understand that
spotlights can have a practical function that differs from the
essentially communicative function of emergency lights. A
13
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
spotlight can be used to illuminate the surrounding area for
safety or other purposes unrelated to the projection of authority.
Proper illumination enhances the officer’s ability to make
“ ‘swift, on-the-spot decisions’ ” that are appropriate to the
circumstances. (Brown, supra, 61 Cal.4th at p. 984, quoting
United States v. Sokolow (1989) 490 U.S. 1, 11.)1 And, in certain
circumstances, depending on how the spotlight is used, it might
help both the officer and the civilian see what the other is doing
and make decisions accordingly. Thus, unlike Kidd, we believe
a reasonable person would distinguish between a spotlight and
1
The dissent asserts that the police do not have the same
latitude to conduct an investigation at night as they do during
the day. (Dis. opn. of Liu, J., post, at pp. 10–11.) The authorities
cited are inapposite. Penal Code sections 840 and 1533 limit the
ability to arrest or execute a search warrant at night out of
concern for the sanctity of the home. The cited sections do not
impose general restrictions on an officer’s authority or
responsibility to investigate crimes at night. Further, they do
not at all restrict police investigations in public places. Instead,
Penal Code section 840 prohibits an arrest for the commission of
a misdemeanor or infraction between 10:00 p.m. and 6:00 a.m.
and specifically excepts arrests “made in a public place.” (Id.,
subd. (2).) Penal Code section 1533 requires that a search
warrant be served only between 7:00 a.m. and 10:00 p.m. absent
a finding of good cause. (See also People v. Watson (1977) 75
Cal.App.3d 592, 595–596 [Pen. Code, § 1533 is concerned with
the drastic intrusion upon a person’s residence by execution of a
search warrant].)
The nonbinding authority of U.S. v. Wilson (4th Cir. 2000)
205 F.3d 720, 723–724 and U.S. v. McLemore (8th Cir. 2018) 887
F.3d 861, 866–867 hold that an officer’s inability to see does not
justify a suspicionless detention. They do not address whether
an officer can investigate darkened areas or whether the use of
illumination effects a detention.
14
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
red and blue emergency lights in considering whether the
person was free to leave or otherwise terminate the encounter.
As in Brown, however, we decline to state a bright-line
rule. A court must consider the use of a spotlight together with
all of the other circumstances. It is certainly possible that the
facts of a particular case may show a spotlight was used in an
authoritative manner. These may include flashing lights at the
driver to pull the car over or attempting to blind the driver,
which would be relevant considerations under the totality of the
circumstances. (See, e.g., Cascio, supra, 932 P.2d at p. 1388.)
But use of a spotlight, standing alone, does not necessarily effect
a detention.
Considering the circumstances here, Tacardon was not
detained when Deputy Grubb parked behind the BMW, shined
a spotlight on it, and began to approach on foot. Grubb made
eye contact with Tacardon as he drove by. He then made a U-
turn, parked 15 to 20 feet behind Tacardon’s car, and employed
the spotlight. After taking about 20 seconds to inform the
dispatcher, he began walking towards the car. The deputy’s
conduct up to this point conveyed none of the coercive hallmarks
of a detention. He did not stop Tacardon’s vehicle or block him
from driving away. He did not activate a siren or emergency
lights or give directions by loudspeaker. He did not approach
rapidly or aggressively on foot or draw a weapon. He gave no
commands and made no demands; in fact, he did not seem to
communicate at all with Tacardon or his passengers until the
woman got out of the car and began to walk away. As we explain
below (see discussion, post, at p. 26), it was only after she was
given, and complied with, Grubb’s directive to remain that she
was detained.
15
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Until that point, the deputy’s conduct was consistent with
that in United States v. Drayton (2002) 536 U.S. 194 (Drayton).
There, the high court found no detention where there was “no
application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no
blocking of exits, no threat, no command, not even an
authoritative tone of voice.” (Id. at p. 204.) In this context, a
reasonable person would view the deputy’s use of a spotlight as
similarly lacking in coercive force. The deputy used the
spotlight as a matter of course. There was no evidence it was
unusually bright or flashing, or that Tacardon was blinded or
overwhelmed by the light. Certainly, a reasonable person would
notice the deputy’s use of a spotlight, and depending on how it
is used, a spotlight may contribute to the coerciveness of a police
encounter. But under the totality of the circumstances here,
Tacardon was not detained.
The dissent argues that this conclusion “strains credulity.”
(Dis. opn. of Liu, J., post, at p. 4.) Citing a magazine article and
a manual by a patrol officer, the dissent asserts that it is a
matter of common experience for both officers and civilians alike
that a spotlight has a disorienting effect on a car’s occupants.
(Id. at p. 6.) It also relies on cases which noted some evidence of
that effect. (Id. at p. 7.) But no such evidence was elicited here.
The deputy was not asked whether he had been trained to use
his spotlight in that fashion, or whether its use in this
circumstance was disorienting. Tacardon did not testify that he
16
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
was blinded by the spotlight. For this reason, the nonbinding
cases cited by the dissent are distinguishable.2
2
In U.S. v. Delaney, supra, 955 F.3d 1077, the officers
parked their patrol car approximately “ ‘[three] feet away from
the nose of the [defendant’s] Jeep’ ” and trained their patrol car’s
“take-down light” on it. (Id. at pp. 1082, 1083.) The court noted
that “[s]uch aptly named lights ‘are designed to illuminate the
stopped car as well as to provide protection for an officer by
blinding and disorienting the car’s occupants if they look back
at the squad car.’ ” (Id. at p. 1083, quoting U.S. v. Shelby (7th
Cir. 2000, Oct. 26, 2000, No. 00-1873) 2000 WL 1611120, p. *1,
fn. 1 [unpublished table decision].) Notably, the unpublished
case Delaney quoted for the description of the “take-down light”
provides no source material for this factual assertion; nor did it
involve a Fourth Amendment challenge to the defendant’s
detention in that case. (See Shelby, supra, 2000 WL 1611120,
at pp. *1, fn. 1, *2.)
In U.S. v. Sigmond-Ballesteros (9th Cir. 2002) 285 F.3d
1117, the officer in that case, having “pulled alongside
Defendant’s truck” as it traveled in the slow lane of a highway,
“shined his alley light almost directly into Defendant’s face”
while the defendant was still driving. (Id. at pp. 1120, 1124.)
The defendant put his hand up to shield his eyes from the light.
(Id. at p. 1120.) The officer described the defendant’s act of
covering his face as “ ‘suspicious behavior,’ ” but the court
disagreed and concluded that this gesture did not supply
reasonable suspicion to detain. (Id. at p. 1124.) It did not
consider whether use of such illumination effected a detention.
(Ibid.)
In State v. Garcia-Cantu (Tex.Crim.App. 2008) 253 S.W.3d
236, the officer trained a spotlight on the defendant’s truck
“even before he stopped his [patrol] car” (id. at p. 245), blocked
the defendant’s truck (id. at p. 246), approached the car in an
authoritative manner (id. at p. 248), asked, “ ‘What are you
doing here?’ ” (ibid.), shined a flashlight into the defendant’s
eyes, and requested identification (ibid.). The defendant
testified at the suppression hearing that when the officer pulled
17
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Citing a treatise, the dissent reasons that “[s]ingling out a
parked car and training a powerful spotlight on it from behind,
as [Deputy] Grubb did here, is ‘conduct significantly beyond’ any
sort of ‘nonoffensive contact . . . between two ordinary citizens.’ ”
(Dis. opn. of Liu, J., post, at p. 9, quoting 4 LaFave, Search and
Seizure (6th ed. 2002) § 9.4(a), pp. 597, 598, fns. omitted.) But
LaFave, and the extra-jurisdictional cases cited, do not support
the conclusion that the circumstances of this case qualified as
such a “significant[]” departure from ordinary expectations as to
effect a detention. (Id. at p. 597.) Addressing specifically the
subject of police contact with persons seated in parked vehicles,
LaFave acknowledges that no seizure occurs when an officer
“merely walks up [and poses a question] to a person . . . who is
seated in a vehicle located in a public place.” (Id. at pp. 591–
592, fn. omitted; see also id. at p. 610.) Significantly, its list of
supporting citations includes Tanguay, supra, 918 F.3d 1, which
held that the officers’ act of parking behind a car, activating
floodlights, and approaching on foot did not constitute a
detention (LaFave, at p. 598, fn. 81, citing Tanguay, at p. 7), and
U.S. v. Mabery (8th Cir. 2012) 686 F.3d 591, which held that the
officer’s act of shining a spotlight on Mabery’s vehicle from the
street did not constitute a seizure. (LaFave, at p. 592, fn. 62; see
Mabery, at pp. 595–597.) None of the circumstances LaFave
cites as likely to elevate the encounter to a seizure are present
in this case: an order to “ ‘freeze’ ” or get out of the car, “boxing
the car in, approaching it on all sides by many officers, pointing
a gun at the suspect and ordering him to place his hands on the
up behind him, he “couldn’t see anything more except a big
spotlight, ‘a big white light.’ ” (Id. at p. 240.) The court found a
detention based on the totality of the circumstances. (Id. at p.
249.)
18
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
steering wheel, or use of flashing lights as a show of authority.”
(LaFave, at pp. 611, 612–613, italics added, fns. omitted; see
also id. at pp. 613–614, fn. 130 [citing, among other authorities,
Brown, supra, 61 Cal.4th 968 and contrasting cases where only
use of spotlight was involved].)
Tacardon reasons that he was clearly the focus of the
deputy’s “official scrutiny” when the deputy made eye contact,
turned the patrol car around, parked behind the BMW,
activated his spotlight, and began walking towards the car.
According to Tacardon, he “knew he was engaged in an
encounter with the authorities even before the deputy
approached the car on foot, and was well aware of the light
glaring immediately behind his car.” He cites Kidd’s holding
that “any ambiguity [as to whether a detention occurred] was
removed when the officer more or less immediately exited his
patrol vehicle and began to approach [the defendant’s] car.
Although the officer’s approach was, according to record, not
made in a particularly aggressive or intimidating manner, a
reasonable person in [the defendant’s] circumstances would not
have felt free to leave.” (Kidd, supra, 36 Cal.App.5th at pp. 21–
22.)
Under Tacardon’s proposed rule, any person who is aware
of police scrutiny and is then illuminated by a spotlight is
necessarily detained. Such a rigid approach fails to properly
honor the totality of the circumstances test noted in Brown. A
person approached by an officer may well consider himself the
object of official scrutiny. Indeed he is. An officer of the law has
initiated a contact for some reason and is requesting interaction.
The question is where Fourth Amendment jurisprudence draws
the line between mere consensual contact, which requires no
justification, and a detention, which requires articulation of a
19
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
reasonable suspicion that a crime may be afoot. But the high
court has long held an officer’s mere approach does not
constitute a seizure. (Bostick, supra, 501 U.S. at p. 434;
Chesternut, supra, 486 U.S. at pp. 575–576; INS v. Delgado
(1984) 466 U.S. 210, 216 (Delgado); Florida v. Royer (1983) 460
U.S. 491, 497 (plur. opn. of White, J.).) While a reasonable
person in Tacardon’s position might “feel himself the object of
official scrutiny, such directed scrutiny does not amount to a
detention.” (Perez, supra, 211 Cal.App.3d at p. 1496; accord,
People v. Chamagua (2019) 33 Cal.App.5th 925, 927, 929;
Franklin, supra, 192 Cal.App.3d 935, 940.) A detention occurs,
not the moment a person knows an officer would like to interact,
but when a person would reasonably believe he or she “ ‘ “was
not free to leave” ’ or ‘ “otherwise terminate the encounter,” ’ ”
and submits to the officer’s show of authority. (Brown, supra,
61 Cal.4th at p. 974.)
Notably, courts ruling a detention occurred have
emphasized other coercive aspects of the officer’s approach that
are not present here. Wilson v. Superior Court (1983) 34 Cal.3d
777 is instructive in considering when targeted scrutiny might
transform a contact into a detention. There, an undercover
narcotics officer approached the defendant as he walked off a
plane in the Los Angeles International Airport. The officer
identified himself, displayed his badge, and asked if he “ ‘might
have a minute of [the defendant’s] time.’ ” (Id. at p. 781.) When
the defendant said, “ ‘Sure,’ ” the officer advised him that he was
“ ‘conducting a narcotics investigation, and that [he] had
received information that [the defendant] would be arriving
today from Florida carrying a lot of drugs.’ ” (Ibid., italics
omitted.) We found that a detention occurred and clarified when
it took place. “[I]t is evident that Detective Kaiser did not detain
20
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Wilson, for federal constitutional purposes, merely by
approaching him, identifying himself as a police officer, and
asking if he might have a minute of his time. [H]owever, the
officer did not simply ask Wilson if he would permit a search of
his luggage. Instead, he advised Wilson that he was conducting
a narcotics investigation and that he ‘had received information
that . . . [Wilson] would be arriving today from Florida carrying
a lot of drugs.’ ” (Id. at p. 790, italics omitted.) At that point
“the entire complexion of the encounter changed . . . .” (Id. at p.
791.) “Common sense suggests to us that in such a situation, an
ordinary citizen, confronted by a narcotics agent who has just
told him that he has information that the citizen is carrying a
lot of drugs, would not feel at liberty simply to walk away from
the officer.” (Id. at p. 790.)
In Garry, supra, 156 Cal.App.4th 1100, an officer on night
vehicle patrol saw the defendant standing near a parked car. He
pulled up about 35 feet away, turned the patrol car’s spotlight
on the defendant, and walked “ ‘briskly’ ” toward him. (Id. at p.
1104.) When the defendant told the officer, “ ‘ “I live right
there” ’ ” and pointed to a house, the officer replied, “ ‘Okay, I
just want to confirm that,’ ” and asked the defendant if he was
on probation or parole. (Ibid.) When the defendant said he was
on parole, the officer grabbed him and a struggle ensued. The
officer handcuffed the defendant and searched him, discovering
narcotics. (Ibid.) The appellate court found a detention,
emphasizing that the officer had rushed at the defendant,
disregarded the defendant’s representation that he was merely
standing outside of his own home, and voiced an intention “ ‘to
confirm that.’ ” (Ibid.; see id. at pp. 1111–1112.) The court
reasoned: “any reasonable person who found himself in
defendant’s circumstances, suddenly illuminated by a police
21
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
spotlight with a uniformed, armed officer rushing directly at
him asking about his legal status, would believe themselves to
be ‘under compulsion of a direct command by the officer.’ ” (Id.
at p. 1112, quoting People v. McKelvy (1972) 23 Cal.App.3d 1027,
1034.)
In People v. Kasrawi (2021) 65 Cal.App.5th 751, review
granted September 1, 2021, S270040, an officer patrolling in a
residential neighborhood early one morning saw the defendant
cross the street and begin to enter a car. The officer turned on
the patrol car’s spotlight and “pulled up behind and to the side
of” the defendant’s vehicle. (Id. at p. 754.) The defendant turned
to face the officer, who immediately approached and walked to
within a few feet of the defendant, asking him where he was
coming from. The defendant responded that he was resting
while on a drive from Los Angeles, which the officer found
suspicious because the street was several miles from the
highway. The officer detained and handcuffed the defendant
and discovered an outstanding warrant. A search incident to
arrest yielded stolen items from nearby cars. (Id. at pp. 754–
755.) The appellate court concluded that the defendant was
detained before he responded to the officer’s inquiry. (Id. at p.
756.) It emphasized that the officer parked within a few feet of
the defendant’s car; “ ‘bathed’ ” the defendant with light;
immediately approached with “speed and surety,” as
memorialized by the officer’s body camera; and asked an
immediate, pointed question, which demanded an answer. (Id.
at pp. 759, 760.)
The facts of Wilson, Garry, and Kasrawi are
distinguishable from the events here. Upon initially
approaching Tacardon’s vehicle, Deputy Grubb did not walk
rapidly, pose any questions to Tacardon, or accuse him of
22
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
anything. The deputy’s nighttime approach, aided by a spotlight
for illumination, did not, without more, effect a detention.
People v. Kidd, supra, 36 Cal.App.5th 12 is disapproved to the
extent it is inconsistent with the holding here.
Citing other dissenting opinions and legal commentators,
the dissent posits that the “ ‘free to leave’ standard has long been
criticized for having ‘an air of unreality’ and for lacking ‘common
. . . understanding’ of how civilians experience encounters with
the police.” (Dis. opn. of Liu, J., post, at p. 8, quoting Drayton,
supra, 536 U.S. at pp. 208, 210 (dis. opn. of Souter, J.).) Our
dissenting colleague emphasizes that he personally would not
feel free to simply drive away from the officer in this
circumstance, and suspects others would not either. (Dis. opn.
of Liu, J., post, at p. 2.) As other courts have noted, however,
“[t]he ‘free to walk away’ test . . . must be read in conjunction
with the Court’s frequent admonitions that ‘a seizure does not
occur simply because a police officer approaches an individual
and asks a few questions.’ [Citations.] What emerges between
the two imperatives, therefore, is the directive that police
conduct, viewed from the totality of the circumstances, must
objectively communicate that the officer is exercising his or her
official authority to restrain the individual’s liberty of
movement before we can find that a seizure occurred.” (U.S. v.
Cardoza (1st Cir. 1997) 129 F.3d 6, 16; see also, e.g., Delgado,
supra, 466 U.S. at p. 216 [“While most citizens will respond to a
police request, the fact that people do so, and do so without being
told they are free not to respond, hardly eliminates the
consensual nature of the response”].) Applying this standard,
the high court has held, for example, that workers were not
seized when armed law enforcement agents, displaying badges
and positioned near the exits, questioned the workers at their
23
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
job site about their citizenship as part of a “ ‘factory survey[].’ ”
(Delgado, at p. 212; see id. at pp. 212–213, 215–221.) It likewise
determined there was no detention where the defendant, in an
airport, agreed to speak to law enforcement after knowing he
had attracted the officer’s attention, and the officer displayed
his badge and asked to talk. (Florida v. Rodriguez (1984) 469
U.S. 1, 4–6 (per curiam).)
In Drayton, supra, 536 U.S. 194, plain-clothes officers
boarded a Greyhound bus at a scheduled stop after securing the
driver’s permission to conduct a routine drug and weapons
interdiction effort. Officer Lang displayed his badge and spoke
to each passenger, positioning himself so that he did not block
the aisle. (Id. at pp. 197–198.) Drayton and his companion
Brown were seated together. The officer asked if they were
traveling with luggage, and the pair pointed to a bag in the
overhead rack. (Id. at pp. 198–199.) Lang asked, “ ‘Do you mind
if I check [the bag]?’ ” and Brown said, “ ‘Go ahead.’ ” (Id. at p.
199.) The check revealed no contraband. Brown then consented
to a pat-down search of his person, which resulted in the
discovery of contraband. Brown was arrested. (Ibid.) Lang then
asked Drayton, “ ‘Mind if I check you?’ ” (Ibid.) Drayton lifted
his hands and a pat-down revealed objects similar to drug
packaging. Drayton was likewise arrested. Further
investigation revealed both men had bundles of cocaine powder
duct-taped between several pairs of their boxer shorts. (Ibid.)
The court held Drayton had not been detained before the pat-
down revealed what appeared to be drug packaging. (Id. at pp.
203–206.) It concluded that “ample” evidence pointed to a
consensual encounter. (Id. at p. 204.)
Here, though Grubb made clear his interest in speaking
with Tacardon, he did not objectively communicate that he was
24
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
exercising his official authority to restrain him. If the high court
believes the standard should be changed or applied in a different
way, it may certainly so conclude. Until then, however, it is the
standard the court prescribes, and we are bound by the court’s
application of that standard.
The dissent also questions whether today’s result creates
an incentive for citizens to drive away from officer encounters,
risking escalation and danger for both the officer and the
civilian. (Dis. opn. of Liu, J., post, at pp. 9–12.) But as the high
court has recognized in other contexts, individuals frequently
have alternatives for asserting their Fourth Amendment rights,
such as refusing to answer the officer’s questions or otherwise
declining to act in the manner the officer has requested.
(Bostick, supra, 501 U.S. at pp. 435–437.) And while many law-
abiding citizens will choose to cooperate with the police “because
[they] know that their participation enhances their own safety
and the safety of those around them,” that fact alone does not
negate the consensual nature of their response. (Drayton,
supra, 536 U.S. at p. 205.)
B. Detention of the Passenger
Tacardon argues that Deputy Grubb’s detention of the
female passenger who got out of the car effectively
communicated to Tacardon that he also was not free to leave.
The Court of Appeal rejected this assertion. Although the court
had “no difficulty concluding [the passenger] was detained”
when Grubb “ordered her to remain on the sidewalk near the
[car],” it found “no evidence defendant observed the deputy’s
interaction with [the passenger], or that the deputy conveyed to
defendant that he, like [the passenger], was required to remain.”
(Tacardon, supra, 53 Cal.App.5th at p. 100.) It therefore
25
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
concluded that “the magistrate’s implied finding that defendant
was not detained at this point is supported by substantial
evidence.” (Ibid.)
It is clear that Grubb detained the female passenger. As
the deputy approached Tacardon’s car, the passenger “jumped
out” of the back seat, closed the door behind her, and walked
towards the back of the BMW. When the deputy asked her what
she was doing, she responded, “I live here.” He then directed
her to stand near the sidewalk, and she complied. At this point,
the woman was detained.
The question is what effect, if any, did Grubb’s conduct
have on Tacardon. It is well established that an officer’s show
of authority towards others can communicate that the defendant
is also not free to leave or terminate the encounter. In Brendlin
v. California (2007) 551 U.S. 249 (Brendlin), for example, the
Supreme Court held that a passenger riding in a vehicle is
detained when an officer pulls a driver over for a traffic
violation. The court there emphasized that “an ‘unintended
person . . . [may be] the object of the detention,’ so long as the
detention is ‘willful’ and not merely the consequence of ‘an
unknowing act.’ ” (Id. at p. 254, quoting Brower v. Inyo County
(1989) 489 U.S. 593, 596.) It explained: when a car containing
passengers is pulled over, “any reasonable passenger [will
understand] the police officers to be exercising control to the
point that no one in the car [is] free to depart without police
permission.” (Brendlin, at p. 257.)
But for this rule to apply, the defendant must be aware of
the officer’s show of authority directed at another. In Brendlin,
for example, the officer used “ ‘flashing lights’ ” to stop the
vehicle in which Brendlin was riding. (Brendlin, supra, 551 U.S.
26PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
at p. 260.) Likewise, in Brown, supra, 61 Cal.4th 968, the
deputy “pulled behind [the defendant’s] car and activated the
overhead emergency lights on his patrol car.” (Id. at p. 973.) We
rejected the People’s argument that Brown was not aware of the
deputy’s presence until the deputy approached the car on foot as
unsupported by substantial evidence. “[The deputy] did not
testify that Brown was unconscious, probing under the seat, or
otherwise distracted. The reasonable inference to be drawn
from the record was that Brown was aware of the deputy’s
overhead emergency lights flashing in the dark immediately
behind his car.” (Id. at p. 980.)
Here, then, the critical factual question was whether
Tacardon overheard or otherwise perceived the deputy’s
interaction with the passenger. But the record shows the
magistrate did not consider this question. At the preliminary
hearing, the prosecutor argued that the deputy’s directives to
the passenger were “irrelevant with respect to the defendant.
Whether or not he stopped her under the Fourth Amendment to
keep her from going into that house is not something I need to
argue to the court because she’s not here.” That argument
confuses the issue of the passenger’s standing to challenge her
own detention with the effect her detention may have had on
Tacardon. The magistrate appeared to adopt the prosecutor’s
position, commenting to defense counsel that “[the deputy] said
to the woman she couldn’t leave. As said by [the prosecutor],
that’s not the question. [T]he question is [whether] the
defendant [was] told he couldn’t leave.” This formulation is
overly narrow. The question is not whether Tacardon was “told
he couldn’t leave” but whether the totality of the circumstances
reasonably conveyed to Tacardon he was compelled to remain.
The magistrate further observed that “there certainly was a
27
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
point at which the defendant wasn’t free to go, but that still
would not preclude it being characterized as a contact.” The
observation overlooks the principle that a consensual encounter
can evolve into a detention, and suggests the magistrate did not
resolve the critical question of the point at which a detention
occurred. The magistrate never made an express factual finding
as to whether Tacardon was aware of Grubb’s interaction with
the passenger. Its endorsement of the prosecutor’s argument
indicates it did not make an implied finding either.
Because an individual may be detained as a result of a
police officer’s directives to another person (Brendlin, supra, 551
U.S. at p. 260), the magistrate erred by failing to consider
whether the deputy’s interaction with Tacardon’s passenger,
together with all the other relevant circumstances, effected a
detention of Tacardon as well. Although we independently
determine whether the defendant was detained as a matter of
law, we rely on the magistrate’s factual findings. We normally
imply in favor of the magistrate’s order every finding that is
supported by the evidence, but this rule “operates only where it
can be presumed that the court has performed its function of
weighing the evidence. If analysis of the record suggests the
contrary, the rule should not be invoked.” (Estate of Larson
(1980) 106 Cal.App.3d 560, 567.) Because the record
affirmatively shows the magistrate did not consider whether
Tacardon was aware of the deputy’s interaction with his
passenger, the Court of Appeal was wrong to presume the
magistrate considered the issue and resolved it against
Tacardon. Instead, the record shows the magistrate made no
finding at all on that question. (See In re Edgerrin J. (2020) 57
Cal.App.5th 752, 769.)
28
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
Under the circumstances here, we cannot resolve this
factual question in the first instance. “As the finder of fact in a
proceeding to suppress evidence [citation], the superior court is
vested with the power to judge the credibility of the witnesses,
resolve any conflicts in the testimony, weigh the evidence and
draw factual inferences in deciding whether a search is
constitutionally unreasonable.” (People v. Woods (1999) 21
Cal.4th 668, 673.) We cannot displace the magistrate as the
trier of fact unless the evidence is susceptible to only one
reasonable interpretation. (Cf. Brown, supra, 61 Cal.4th at p.
980.)
Here, unlike Brown, the record supports conflicting
inferences on the issue of Tacardon’s awareness. Tacardon did
not testify at the hearing, so any conclusions to be drawn about
his awareness of the interaction between Grubb and the female
passenger were necessarily circumstantial. On the one hand,
Tacardon made eye contact with the deputy as the deputy drove
by in a marked patrol car. That fact could support an inference
that Tacardon was also aware of the deputy’s conduct in turning
around, parking behind Tacardon’s car, shining his spotlight,
and leaving his patrol car to approach Tacardon on foot. An
inference could also be drawn that Tacardon was aware his
passenger had left the car. As for Tacardon’s awareness of the
events transpiring thereafter, Tacardon’s car was parked on a
residential street at night, the engine was off, there was no
evidence the street was busy, and the encounter between the
deputy and the passenger occurred about five feet behind the
car.
On the other hand, the car doors were closed and the front
windows were only “slightly lowered.” When the deputy
encountered the passenger, he was far enough away from the
29
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
car that he could not smell marijuana smoke coming from the
windows. He spoke to the passenger in a moderate voice and
did not draw a weapon. Tacardon was reclined in the driver’s
seat and wore a hoodie that covered his head. There was smoke
in the car and the car’s rear windows were tinted. All of these
things may have affected Tacardon’s ability to see and hear
what was going on behind the car. And the occupants were
using marijuana, which may have affected their degree of
attention. There is no evidence Tacardon asked why the deputy
had detained the passenger or otherwise signaled to the deputy
that he was aware of that circumstance.
On this record, we cannot say there is only one reasonable
inference to be drawn from the facts. Accordingly, we find it
appropriate to remand the matter for a new factual finding as to
whether Tacardon was aware of the woman’s detention and to
assess whether Tacardon was detained under the totality of the
circumstances. (See People v. Jenkins (2004) 119 Cal.App.4th
368, 374; see also Bostick, supra, 501 U.S. at p. 437.)3
3
Having concluded that Tacardon’s detention was
supported by reasonable suspicion, the Court of Appeal found it
unnecessary to address the Attorney General’s other argument
that discovery of Tacardon’s probation search condition was an
intervening circumstance that removed the taint of an otherwise
illegal detention. (Tacardon, supra, 53 Cal.App.5th at p. 97, fn.
5.) A similar issue is pending before us in People v. McWilliams,
review granted June 30, 2021, S268320, which involves
discovery of a parole search condition. In this case, the Attorney
General did not raise the issue in an answer to Tacardon’s
petition for review, and neither party has briefed it. Moreover,
the question is premature given our remand for further factual
findings necessary to determine when Tacardon was detained.
30
PEOPLE v. TACARDON
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the
case is remanded for further proceedings consistent with this
opinion.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
31
PEOPLE v. TACARDON
S264219
Concurring and Dissenting Opinion by Justice Groban
I agree with the majority opinion that we should “remand the
matter for a new factual finding as to whether Tacardon was aware of
the [passenger’s] detention and to assess whether Tacardon was
detained under the totality of the circumstances.” (Maj. opn., ante, at
p. 30.) However, the opinion further concludes that “Tacardon was
not detained when Deputy Grubb parked behind the BMW, shined a
spotlight on it, and began to approach on foot.” (Maj. opn., ante, at
p. 15.) Conversely, the dissenting opinion concludes defendant Leon
William Tacardon was detained at this point in the interaction
without reasonable suspicion in violation of the Fourth Amendment.
(Dis. opn., post, at pp. 1–2.) As to this issue, I would take a different
approach from both the majority opinion and the dissenting opinion.
As both the majority and dissent recognize, the shining of a
police spotlight on a suspect can contribute to the coerciveness of the
encounter and is a factor that must be considered as part of the
relevant totality of circumstances inquiry. (Maj. opn., ante, at pp. 1,
6, 14–16; dis. opn., post, at pp. 3, 7–8.) I think it is a close question
whether Tacardon was detained when Deputy Grubb made a U-turn,
parked behind his car, shined a spotlight on it, and began to approach
on foot. But we do not need to reach this question. We are already
remanding for the superior court to determine whether these facts,
plus Tacardon’s possible awareness of his passenger’s detention,
constituted a detention of Tacardon. I would therefore let the superior
court assess the totality of relevant facts rather than have this court
make a determination now with respect to only some of them.
1
PEOPLE v. TACARDON
Groban, J., concurring and dissenting
GROBAN, J.
2
PEOPLE v. TACARDON
S264219
Dissenting Opinion by Justice Liu
As today’s opinion recounts, Sheriff’s Deputy Joel Grubb
was patrolling a residential neighborhood at night in a marked
car and “had both his headlights and high beams on for ‘extra
visibility.’ He drove past a BMW legally parked in front of a
residence, in the vicinity of a streetlight. The car’s engine and
headlights were off; smoke emanated from slightly open
windows. He saw three people inside and made eye contact with
the occupants as he drove past them. Grubb made a U-turn,
parked about 15 to 20 feet behind the BMW, and turned on his
spotlight. He did not activate his siren or emergency lights or
issue any commands to the car’s occupants. He sat in his patrol
car for 15 to 20 seconds while he informed dispatch of his
location. He then approached the BMW at a walking pace. He
did not draw a weapon.” (Maj. opn., ante, at pp. 1–2.) There is
more to the encounter (id. at pp. 2–3), but my disagreement with
the court centers on these facts.
The court concludes that at this point in the interaction,
defendant Leon William Tacardon, who was in the driver’s seat
of the BMW, was not detained within the meaning of the Fourth
Amendment because a reasonable person in his position would
have believed he was free to leave or otherwise terminate the
encounter with Deputy Grubb. (Maj. opn., ante, at pp. 15–16,
19–20.) In my view, this conclusion does not accord with
“[c]ommon sense.” (Wilson v. Superior Court (1983) 34 Cal.3d
777, 790.) An “ordinary citizen” in Tacardon’s position “would
1
PEOPLE v. TACARDON
Liu, J., dissenting
not feel at liberty to simply walk [or drive] away from the
officer.” (Ibid.) I certainly wouldn’t, and I suspect readers of
today’s opinion wouldn’t either. On the facts above, I would hold
that Tacardon was detained without reasonable suspicion in
violation of the Fourth Amendment and that the judgment of
the Court of Appeal must be reversed and the information
dismissed.
I.
The resolution of this case is straightforward under the
reasoning of People v. Kidd (2019) 36 Cal.App.5th 12 (Kidd), a
case with similar facts. In Kidd, an officer in a patrol car saw
two men parked on a residential street at 1:30 a.m. (Id. at p. 15.)
“The officer passed the car, made a U-turn, and parked about 10
feet behind the car”; he “pointed two spotlights . . . at the
occupied car, and then exited his patrol vehicle.” (Ibid.) As he
approached the car, he smelled marijuana and, upon reaching
the driver’s side window, “shined his flashlight in the car and
asked the occupants what they were doing. Kidd was in the
driver’s seat.” (Ibid.) The officer observed the passenger
attempting to hide bags of suspected marijuana and asked if
either man was on probation or parole. (Ibid.) After Kidd said
he was on probation, the officer ordered the men out of the car
and found drugs and a gun inside the car. (Id. at pp. 15–16.)
“Taking into account the totality of the circumstances,”
the Court of Appeal explained that “Kidd was detained when the
officer made a U-turn to pull in behind him and trained
spotlights on his car. The officer did not block Kidd’s car in, and
he did not illuminate his colored emergency lights, so as to
unambiguously signal a detention. Nevertheless, motorists are
trained to yield immediately when a law enforcement vehicle
2
PEOPLE v. TACARDON
Liu, J., dissenting
pulls in behind them and turns on its lights. Regardless of the
color of the lights the officer turned on, a reasonable person in
Kidd’s circumstances ‘would expect that if he drove off, the
officer would respond by following with red light on and siren
sounding . . . .’ [Citation.] Moreover, any ambiguity was
removed when the officer more or less immediately exited his
patrol vehicle and began to approach Kidd’s car. Although the
officer’s approach was . . . not made in a particularly aggressive
or intimidating manner, a reasonable person in Kidd’s
circumstances would not have felt free to leave.” (Kidd, supra,
36 Cal.App.5th at pp. 21–22.)
Today’s opinion rejects this commonsense conclusion and
says that a police officer’s “use of a spotlight, standing alone,
does not necessarily effect a detention.” (Maj. opn., ante, at
p. 15.) But Kidd’s reasoning is consistent with that proposition.
(See Kidd, supra, 36 Cal.App.5th at p. 21 [“Without more, a law
enforcement officer shining a spotlight on a person does not
constitute a detention.”].) The disagreement here concerns what
significance a court should assign to the use of a spotlight in
considering whether the totality of circumstances of a nighttime
police encounter amounts to a detention.
Today’s opinion relies on cases involving spotlights where
the Courts of Appeal and federal and sister-state courts have
held that no detention occurred. (Maj. opn., ante, at pp. 9–11.)
But those cases are not binding on us, and the fact that Kidd is
in the minority does not diminish the soundness of its reasoning.
(Cf. Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315,
331 [adopting minority position even though “[a] greater
number of cases . . . have taken the opposite view”]; Vandenberg
v. Superior Court (1999) 21 Cal.4th 815, 834 [adopting Court of
Appeal position even though “most other courts addressing the
3
PEOPLE v. TACARDON
Liu, J., dissenting
issue . . . have taken a contrary approach”]; People v.
Scott (1994) 9 Cal.4th 331, 353 & fn. 16 [adhering to “th[e]
minority view” while “recogniz[ing] that the weight of authority
is otherwise”].)
In reaching today’s holding, the court contends that
although activation of red and blue emergency lights “typically
conveys a command to stop,” “the use of a spotlight generally
conveys a different meaning to a reasonable person . . . .” (Maj.
opn., ante, at p. 13.) Because “[a] spotlight can be used to
illuminate the surrounding area for safety or other purposes
unrelated to the projection of authority” (id. at pp. 13–14), the
court “believe[s] a reasonable person would distinguish between
a spotlight and red and blue emergency lights in considering
whether the person was free to leave” (id. at pp. 14–15; see id.
at p. 13 [“[A] reasonable person would understand that
spotlights can have a practical function that differs from the
essentially communicative function of emergency lights.”]).
I imagine this conclusion comes as news to anyone who
has ever had their car illuminated by a police spotlight. The
court apparently envisions that a reasonable person in
Tacardon’s circumstances would think, “Oh, the officer who just
eyeballed me, made a U-turn, pulled up behind me in his patrol
car, pointed a bright spotlight at my car, got out of his car, and
is now walking toward me isn’t trying to stop me. He just turned
on his spotlight to see what’s going on. Good thing he didn’t turn
on his emergency lights . . . looks like I’m free to leave.” This
strains credulity. The spotlight, whatever its “practical
function” (maj. opn., ante, at p. 13), contributes to the officer’s
show of authority. No reasonable person would feel free to leave
in such circumstances. A reasonable person would instead
submit to the officer’s approach and stay put.
4
PEOPLE v. TACARDON
Liu, J., dissenting
In this case, Deputy Grubb may well have “used the
spotlight as a matter of course” (maj. opn., ante, at p. 16) for
“purposes unrelated to the projection of authority” (id. at p. 14).
And it is reasonable to believe that using a spotlight in dark
conditions “might help both the officer and the civilian see what
the other is doing and make decisions accordingly.” (Ibid.) “The
ultimate question, however, is not the abstract reasonableness
of the officer’s actions” or the purposes behind those actions “but
rather the effect of the cumulative show of authority on a
reasonable person’s assessment of whether they are free to
terminate the encounter with law enforcement.” (People v.
Kasrawi (2021) 65 Cal.App.5th 751, 758–759.) Even if it is
reasonable for an officer to use a spotlight for illumination
during a nighttime encounter with a parked motorist, the
question is what the motorist would reasonably believe when
confronted with the officer’s actions. And it is evident from
ordinary experience that “an officer’s show of authority is
usually bolstered by a spotlight — even if it is used primarily for
safety purposes . . . .” (Id. at p. 760.)
Here, Deputy Grubb did not use his spotlight to illuminate
a general area for investigation. Instead, he pointed the
spotlight at Tacardon’s parked car after making eye contact with
its occupants, making a U-turn, and pulling up behind the car.
A reasonable person would have concluded that the officer
activated the spotlight and trained it on the car as part of a
series of targeted actions to detain the car and its occupants.
The court says that “[w]hile a reasonable person in Tacardon’s
position might ‘feel himself the object of official scrutiny, such
directed scrutiny does not amount to a detention.’ ” (Maj. opn.,
ante, at p. 20.) To be sure, “[p]olice officers are as free as any
other citizen to knock on someone’s door and ask to talk with
5
PEOPLE v. TACARDON
Liu, J., dissenting
them, to approach citizens on the street or in their cars and to
ask for information or their cooperation.” (State v. Garcia-
Cantu (Tex.Crim.App. 2008) 253 S.W.3d 236, 243 (Garcia-
Cantu).) But it is equally true that such scrutiny can amount to
a detention in certain circumstances. The question is whether
a reasonable person would feel free to leave or terminate the
encounter, and the fact that activation of a spotlight causes a
person to “ ‘feel himself the object of official scrutiny’ ” (maj.
opn., ante, at p. 20) is probative, even if not dispositive.
Today’s opinion says, “There was no evidence [the
spotlight] was unusually bright or flashing, or that Tacardon
was blinded or overwhelmed by the light. Certainly, a
reasonable person would notice the deputy’s use of a spotlight,
and depending on how it is used, a spotlight may contribute to
the coerciveness of a police encounter.” (Maj. opn., ante, at
p. 16.) But the fact that a spotlight has a disorienting effect that
augments a police officer’s show of authority and the
coerciveness of the encounter is a matter of common experience
to civilians and officers alike. (See Santos, Making Nighttime
Traffic Stops (June 20, 2012) Police Magazine [instructing police
to “[u]se your high beams, spotlights, and takedowns” to
“creat[e] a ‘Wall of Light’ that will overwhelm the occupants of
the subject vehicle with intense light”]; Rayburn, Advanced
Vehicle Stop Tactics: Skills for Today’s Survival Conscious
Officer (2010) p. 4 [instructing officers that “[t]he spotlight will
make it difficult for the operator of the vehicle to see”].)
Further, it does not matter whether an officer is
“attempting to blind the driver” (maj. opn., ante, at p. 15) or
whether, in Deputy Grubb’s view, the spotlight’s “use in this
circumstance was disorienting” or “whether he had been trained
to use his spotlight in that fashion” (id. at p. 16). What matters
6
PEOPLE v. TACARDON
Liu, J., dissenting
is the effect, which courts routinely infer from the totality of the
circumstances. (See U.S. v. Delaney (D.C. Cir. 2020) 955 F.3d
1077, 1083 [shining a police “cruiser’s take-down light” into a
stopped car from behind “ ‘provide[s] protection for an officer by
blinding and disorienting the car’s occupants if they look back
at the squad car’ ”]; U.S. v. Sigmond-Ballesteros (9th Cir. 2002)
285 F.3d 1117, 1123 [“The sudden introduction of a light source
into the driver’s compartment of a vehicle, while the vehicle is
operated at night, can be disruptive and can lead to a decrease
in visibility, if not temporary blindness.”]; Garcia-Cantu, supra,253 S.W.3d at p. 240 [occupant of a car illuminated from behind
may be unable to “see anything more except a big spotlight, ‘a
big white light’ ”].)
To be clear, I do not urge a per se rule that “any person
who is aware of police scrutiny and is then illuminated by a
spotlight is necessarily detained.” (Maj. opn., ante, at p. 19; see
Garcia-Cantu, supra, 253 S.W.3d at p. 244 [“per se rules
generally do not determine whether any specific citizen-police
encounter amounted to a Fourth Amendment detention”; courts
must examine the totality of the circumstances].) And I agree
that relevant circumstances may include whether the officer
stopped a moving vehicle, blocked a person from driving away,
gave instructions by loudspeaker, approached aggressively,
used a commanding tone of voice, or drew a weapon. (Maj. opn.,
ante, at pp. 6, 15–16.) My objection is to the court’s conclusion
that Deputy Grubb’s use of a spotlight to illuminate Tacardon’s
car lacked “coercive force” that informed whether a reasonable
person would have felt free to terminate the encounter. (Id. at
p. 16.) I would hold that shining a police spotlight to illuminate
a parked car on a residential street contributes to the
coerciveness of the encounter in the circumstances here, where
7
PEOPLE v. TACARDON
Liu, J., dissenting
it was preceded by an officer on patrol making eye contact with
the car’s occupants, making a U-turn, and pulling up behind the
car, and then followed a few seconds later by the officer getting
out of his patrol vehicle and approaching the car.
II.
Although I acknowledge there is case law that supports
today’s holding (maj. opn., ante, at pp. 9–11), it must also be
acknowledged that judicial application of the “free to leave”
standard has long been criticized for having “an air of unreality”
and for lacking “common . . . understanding” of how civilians
experience encounters with the police. (United States v. Drayton
(2002) 536 U.S. 194, 208, 210 (dis. opn. of Souter, J.); see State
v. Fogg (Iowa 2019) 936 N.W.2d 664, 675–677 (dis. opn. of Appel,
J.) [citing criticism by justices of the United States Supreme
Court, lower court judges, and scholars]; Sundby, The Rugged
Individual’s Guide to the Fourth Amendment: How the Court’s
Idealized Citizen Shapes, Influences, and Excludes the Exercise
of Constitutional Rights (2018) 65 UCLA L.Rev. 690, 718, 721
(Sundby) [4th Amend. jurisprudence has a “tone of
obliviousness” and “does not accord with reality”];
LaFave, Pinguitudinous Police, Pachydermatous Prey: Whence
Fourth Amendment “Seizures”? (1991) 1991 U. Ill. L.Rev. 729,
739–740 [“[T]he Court finds a perceived freedom to depart in
circumstances when only the most thick-skinned of suspects
would think such a choice was open to them.”].)
To say that a person in Tacardon’s position was
experiencing a “consensual contact” with Deputy Grubb (maj.
opn., ante, at p. 19) is to proffer a rather sanguine and
empirically dubious view of police-citizen interactions.
(Kessler, Free to Leave? An Empirical Look at the Fourth
8
PEOPLE v. TACARDON
Liu, J., dissenting
Amendment’s Seizure Standard (2009) 99 J. Crim. L. &
Criminology 51, 62 [“[T]here is a wealth of evidence from
psychological studies suggesting that people rarely comply
freely with requests from police officers.”]; see, e.g., Sommers &
Bohns, The Voluntariness of Voluntary Consent: Consent
Searches and the Psychology of Compliance (2019) 128 Yale L.J.
1962; Smith et al., Testing Judicial Assumptions of the
“Consensual” Encounter: An Experimental Study (2013) 14 Fla.
Coastal L.Rev. 285; Lichtenberg, Miranda in Ohio: The Effects
of Robinette on the “Voluntary” Waiver of Fourth Amendment
Rights (2001) 44 How. L.J. 349.)
Professor LaFave, while recognizing the “ ‘moral and
instinctive pressures to cooperate’ ” with the police, has said:
“[T]he confrontation is a seizure only if the officer adds to those
inherent pressures by engaging in conduct significantly beyond
that accepted in social intercourse. The critical factor is whether
the policeman, even if making inquiries a private citizen would
not, has otherwise conducted himself in a manner which would
be perceived as a nonoffensive contact if it occurred between two
ordinary citizens.” (4 LaFave, Search and Seizure (6th ed. 2022)
§ 9.4(a), fns. omitted.) Singling out a parked car and training a
powerful spotlight on it from behind, as Deputy Grubb did here,
is “conduct significantly beyond” any sort of “nonoffensive
contact . . . between two ordinary citizens.” (Ibid.; see Veh.
Code, § 24409, subd. (b) [prohibiting use of high beams
“[w]henever the driver of a vehicle follows another vehicle
within 300 feet to the rear”].)
As the court suggests, Fourth Amendment doctrine on
police use of spotlights is significantly animated by safety
concerns. (Maj. opn., ante, at pp. 13–14; see U.S. v. Tanguay
(1st Cir. 2019) 918 F.3d 1, 7–8.) Yet one might wonder whether
9
PEOPLE v. TACARDON
Liu, J., dissenting
today’s opinion creates new safety issues for both officers and
civilians. By holding that Tacardon was not detained at the
point when Deputy Grubb had activated his spotlight and began
to approach on foot, the court contemplates that a person in
Tacardon’s position may simply drive away without warning —
even if an officer is walking toward the car and even if a
passenger, desiring to leave the encounter, is exiting the car.
Such a scenario would not promote the safety of either officers
or civilians.
The fact is that notwithstanding today’s decision,
reasonable persons in Tacardon’s position will not drive away
because they will not feel free to leave. A more realistic
statement of today’s holding is that even though the use of a
spotlight will often contribute to the coerciveness of a nighttime
encounter, this circumstance simply does not outweigh safety
concerns in the Fourth Amendment analysis. A carveout for
spotlights would arguably put officers on the same footing, day
or night, with regard to investigatory activities like approaching
a parked car.
Yet there is no policy or principle of which I am aware that
says the police must have the same latitude for conducting
investigation during the night as during the day. To the
contrary, California law distinguishes between daytime and
nighttime intrusions by police. (See Pen. Code, § 840 [“An arrest
for the commission of a misdemeanor or an infraction cannot be
made between the hours of 10 o’clock p.m. of any day and 6
o’clock a.m. of the succeeding day, unless” certain criteria are
met]; id., § 1533 [requiring showing of good cause before
magistrate may approve service of search warrant between
10:00 p.m. and 7:00 a.m.]; Tuttle v. Superior Court (1981) 120
Cal.App.3d 320, 331 [“By adopting Penal Code section 1533, the
10
PEOPLE v. TACARDON
Liu, J., dissenting
Legislature has clearly taken note that there is a special threat
to privacy presented by nighttime police intrusions.”].)
Moreover, courts have refused to credit darkness as an excuse
for police intrusions conducted without reasonable suspicion.
(See, e.g., U.S. v. Wilson (4th Cir. 2000) 205 F.3d 720, 723–724
[vacating conviction stemming from vehicle pullover conducted
because officer, due in part to darkness, could not read
expiration date on vehicle’s registration tag]; U.S. v.
McLemore (8th Cir. 2018) 887 F.3d 861, 866 [rejecting
government’s argument that inability to read temporary license
plate due to darkness justified police stop and affirming
suppression of evidence].)
Recognizing the coercive effect of spotlights would likely
limit some nighttime investigations, including ones like Deputy
Grubb’s that turn up contraband. However, for every
suspicionless stop that uncovers criminal activity, there are
many others that come up empty. (See Bar-Gill &
Friedman, Taking Warrants Seriously (2012) 106 Nw. U. L.Rev.
1609, 1655 [“police find evidence in only about 10% to 20% of the
total traffic searches”].) And “it is no secret that people of color
are disproportionate victims of this type of [suspicionless]
scrutiny.” (Utah v. Strieff (2016) 579 U.S. 232, 254 (dis. opn. of
Sotomayor, J.); see Ayres & Borowsky, A Study of Racially
Disparate Outcomes in the Los Angeles Police Department (Oct.
2008) pp. 5–8 [Black and Hispanic residents of Los Angeles,
compared to Whites, were more likely to be stopped, frisked,
searched, and arrested but significantly less likely to be found
with weapons or drugs]; Gross & Barnes, Road Work: Racial
Profiling and Drug Interdiction on the Highway (2002) 101
Mich. L.Rev. 651, 668 [searches of White drivers in Maryland
reveal drugs 22% more often than searches of Black drivers and
11
PEOPLE v. TACARDON
Liu, J., dissenting
over 200% more often than searches of Hispanic drivers]; Note,
Discrimination During Traffic Stops: How an Economic Account
Justifying Racial Profiling Falls Short (2012) 87 N.Y.U. L.Rev.
1025, 1040 [searches of White drivers in Illinois reveal
contraband over 50% more often than searches of non-White
drivers]; cf. Kang et al., Implicit Bias in the Courtroom (2012)
59 UCLA L.Rev. 1124, 1142 [“the conditions under which
implicit biases translate most readily into discriminatory
behavior are when people have wide discretion in making quick
decisions with little accountability”].)
Moreover, not all individuals feel the same degree of
freedom to rebuff police advances, even if the law says they are
free to leave. (See Pierson et al., A large-scale analysis of racial
disparities in police stops across the United States (July 2020) 4
Nature Human Behaviour 736, 739 [Black and Hispanic drivers
are twice as likely as White drivers to undergo search when
stopped by police]; cf. Utah v. Strieff, supra, 579 U.S. at p. 254
(dis. opn. of Sotomayor, J.) [“For generations, black and brown
parents have given their children ‘the talk’ — instructing them
never to run down the street; always keep your hands where
they can be seen; do not even think of talking back to a
stranger — all out of fear of how an officer with a gun will react
to them.”].) Would a reasonable person in Tacardon’s position
feel free to drive away from Deputy Grubb or otherwise refuse
to cooperate? The court’s holding leaves many citizens “ ‘in a
“Catch-22.” Exercise of citizen rights in the face of police rights
may cause police to escalate the intrusiveness of the encounter
and place the citizen at risk of both physical harm and formal
arrest. Failure to exercise citizen rights by responding to the
officer, however, may be viewed as consensual conduct removing
the encounter from Fourth Amendment analysis.’ ” (State v.
12
PEOPLE v. TACARDON
Liu, J., dissenting
Fogg, supra, 936 N.W.2d at p. 681 (dis. opn. of Appel, J.); see
Sundby, supra, 65 UCLA L.Rev. at p. 726 [such deprivation of
constitutional rights “undermines the trust and legitimacy with
which the justice system is viewed by minority communities”].)
In sum, today’s opinion stretches the concepts of a
“consensual encounter” and being “free to leave” beyond the
bounds of common understanding and ordinary experience. I
fear that the benefits of the court’s decision, which expands the
investigatory authority of the police, will come at the cost of
subjecting more law-abiding persons to unwarranted
surveillance, creating more police-civilian interactions with the
potential for misunderstanding or escalation, and deepening the
distrust that some communities have long had toward law
enforcement.
I respectfully dissent.
LIU, J.
13
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Tacardon
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 53 Cal.App.5th 89Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S264219
Date Filed: December 29, 2022
__________________________________________________________
Court: Superior
County: San Joaquin
Judge: Michael J. Mulvihill, Jr.
__________________________________________________________
Counsel:
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and
Appellant.
Paul Kleven, under appointment by the Supreme Court, for Defendant
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Christopher J. Rench
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 210-7661
Paul Kleven
Attorney at Law
1604 Solano Avenue
Berkeley, CA 94707
(510) 528-7347