People v. Rouise CA2/1

Filed 1/26/22 P. v. Rouise CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B312223
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA109605)
v.
NAKIA TERRELL ROUISE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel J. Lowenthal, Judge. Reversed and
remanded with instructions.
Nicholas Seymour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Nakia Terrell Rouise pleaded no contest to
possession of a firearm with a prior violent conviction, possession
of a firearm by a felon, giving false information to a peace officer,
and driving a motor vehicle without a valid driver’s license. The
trial court sentenced Rouise to an aggregate prison term of three
years eight months. Before Rouise pleaded no contest to these
offenses, the court denied his motion to suppress the evidence
forming the basis of the charge of possession of a firearm with a
prior violent conviction.
On appeal of the judgment, Rouise challenges the trial
court’s denial of his suppression motion. At bottom, Rouise
claims that police lacked reasonable suspicion to detain him in a
business alcove late at night, and that the officers’ subsequent
discovery and seizure of the weapon giving rise to the charge of
possession of a firearm with a prior violent conviction was the
product of that illegal detention.
We conclude the People failed to discharge their burden of
establishing that the warrantless investigative stop was justified
by reasonable suspicion, that is, specific and articulable facts that
Rouise may have been involved in criminal activity. At most, the
People demonstrated that, at the moment Rouise was seized, the
detaining officers were aware that Rouise had sought to avoid
contact with the police late at night in a high crime area.
Because we conclude the trial court erred in denying the motion
to suppress, we reverse the judgment and remand for further
proceedings.
PROCEDURAL BACKGROUND
On July 20, 2020, the People filed a second amended
information charging Rouise with possession of a firearm with a
2
prior violent conviction, in violation of Penal Code1 section 29900,
subdivision (a)(1) (count 1); possession of a firearm by a felon, in
violation of section 29800, subdivision (a)(1) (count 2); giving false
information to a peace officer, in violation of Vehicle Code
section 31 (count 3); and driving a motor vehicle without a valid
driver’s license, in violation of Vehicle Code section 12500,
subdivision (a) (count 4).2 The People also alleged certain
sentencing enhancements that are not relevant to this appeal.
On October 19, 2020, Rouise moved to suppress the
evidence forming the basis of count 1. The trial court held an
evidentiary hearing on the motion on February 24, 2021. The
court denied Rouise’s suppression motion on March 24, 2021.
Later on March 24, 2021, Rouise pleaded no contest to
counts 1, 2, 3, and 4 of the second amended information. The
court sentenced Rouise to an aggregate prison term of three years
eight months, which includes the upper term of three years on
count 1 and a consecutive term of one-third of the mid-term of
24 months on count 2 (i.e., eight months). The court released
Rouise from custody on the ground that the amount of his pre-
imprisonment credits exceeded the sentence imposed. Rouise
timely appealed the judgment.
1 Undesignated statutory citations are to the Penal Code.
2The second amended information alleged that count 1
was perpetrated on a different date than when counts 2, 3, and 4
were purportedly committed.
3
FACTUAL BACKGROUND3
We summarize only those facts that are pertinent to this
appeal.
Shortly after midnight on July 1, 2018, Long Beach Police
Officer David Kasowski was on patrol when he saw a car that
had paper license plates. He turned on his lights and sirens to
stop the vehicle.4 The car continued driving and made two turns.
The vehicle came to a stop at Lemon Avenue and East 17th
Street. When the car stopped, two Black men exited from the
passenger’s side and fled north on Lemon Avenue.
Officer Kasowski observed that one of the two men who
took flight was wearing a flannel shirt and had long dreadlocks.
Officer Kasowski remained with the driver of the car, radioed for
3 We derive the Factual Background primarily from the
undisputed portions of the parties’ appellate briefing that
summarize the evidence considered by the trial court in ruling on
the suppression motion. (See Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 (Artal) [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party. [Citations.]’
[Citations.]”].)
4 The Attorney General claims that Officer Kasowski had
decided to stop the car for some unspecified traffic violation
relating to the paper license plates. The Attorney General,
however, fails to identify this alleged traffic violation. In any
event, we fail to discern the relevance that the driver’s alleged
traffic violation has on the instant appeal, especially given that
the Attorney General does not claim this unspecified violation
supplied officers with reasonable suspicion to detain Rouise.
4
assistance, and reported that two Black men had fled, one of
whom had dreadlocks.
Officer Jeffery Conrad heard the call regarding a vehicle
that was refusing to yield, and that two Black men, one of whom
had dreadlocks, had fled the vehicle and were running north
along Lemon Avenue toward Pacific Coast Highway.5
Officer Conrad reached the area within minutes. He stopped at a
convenience store, but did not see anyone who matched the
descriptions provided over the radio.
Officer Conrad continued driving east along Pacific Coast
Highway, and saw a Black man, later identified as Rouise, round
the corner at Lemon Avenue and “ ‘trot[ ]’ ” toward the police car.
Rouise had something in his hand, which Officer Conrad later
determined was clothing. Rouise, who did not have dreadlocks,
“dove headfirst into a business alcove.”
Officer Conrad stopped his vehicle just before the alcove.
No one else was in the area. Officer Conrad told his partner,
Officer Banuelos, what he had observed. One of the officers
turned on a spotlight and pointed it toward Rouise. Rouise was
5 In the respondent’s brief, the Attorney General recites
the facts included in the textual sentence accompanying this
footnote. Because Rouise does not contest those facts in his reply,
we consider them to be undisputed. (See Reygoza v. Superior
Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in
which the Court of Appeal assumed that an assertion made by
respondent was correct because “defendant did not dispute
respondent’s claim in his reply”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)
5
laying on his side with clothing under his head, and appeared to
be pretending to be asleep.
Officer Banuelos exited the police car, drew his gun, and
ordered Rouise to show his hands. Rouise rose to his feet and
said, “ ‘For what? I didn’t do shit.’ ” Officer Banuelos grabbed
Rouise’s shirt as Rouise tried to get away, and Rouise fell into the
road. After a brief scuffle in which Rouise attempted to break
free from the officers while he was on the ground, he was
subdued and handcuffed.
Rouise was later carried into the back of a police car.
About 15 minutes later, Officer Banuelos opened the car door,
and he and Officer Conrad saw a blue revolver at Rouise’s feet.
The firearm was loaded with five rounds of ammunition. This
blue revolver found in the police car is the weapon giving rise to
the offense alleged in count 1—i.e., the charge of possession of a
firearm with a prior violent conviction.
DISCUSSION
A. Applicable Law
“[W]hen defendants move to suppress evidence, they must
set forth the factual and legal bases for the motion, but they
satisfy that obligation, at least in the first instance, by making a
prima facie showing that the police acted without a warrant. The
prosecution then has the burden of proving some justification for
the warrantless search or seizure, after which, defendants can
respond by pointing out any inadequacies in that justification.”
(People v. Williams (1999) 20 Cal.4th 119, 136 (Williams).)
“ ‘[T]he controlling burden of proof at suppression hearings . . .
[is] proof by a preponderance of the evidence.’ [Citation.]”
6
(People v. Flores (2019) 38 Cal.App.5th 617, 626 (Antonino
Flores).)
“ ‘ “An appellate court’s review of a trial court’s ruling on a
motion to suppress is governed by well-settled principles.
[Citations.] [¶] In ruling on such a motion, the trial court
(1) finds the historical facts, (2) selects the applicable rule of law,
and (3) applies the latter to the former to determine whether the
rule of law as applied to the established facts is or is not violated.
[Citations.] ‘The [trial] court’s resolution of each of these
inquiries is, of course, subject to appellate review.’ [Citations.]
[¶] The court’s resolution of the first inquiry, which involves
questions of fact, is reviewed under the deferential substantial-
evidence standard. [Citations.] Its decision on the second, which
is a pure question of law, is scrutinized under the standard of
independent review. [Citations.] Finally, its ruling on the third,
which is a mixed fact-law question that is however
predominantly one of law, . . . is also subject to independent
review.” ’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255
(Ayala).)
Under the substantial evidence standard, the trial “ ‘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 . . . .’ ” (See People v. Reyes (2009)
172 Cal.App.4th 671, 683.) This standard requires us to “accept
all facts in favor of the ruling, including all reasonable inferences
and deductions” from the evidence. (See People v. Castaneda
(1995) 35 Cal.App.4th 1222, 1227 (Castaneda).)
A warrantless temporary detention constitutes an
unreasonable seizure violative of the Fourth Amendment to the
federal constitution unless it is supported by “reasonable
7
suspicion.” (See Antonino Flores, supra, 38 Cal.App.5th at
pp. 626–628.) Reasonable suspicion exists if “ ‘at the moment of
the detention, there were specific and articulable facts, which
reasonably caused the officer to believe that (1) some activity out
of the ordinary had taken place or was occurring or about to
occur; (2) the activity was related to crime; and (3) the individual
under suspicion was connected to the activity. [Citation.]’
[Citation.]” (See id. at p. 628; see also ibid. [“So long as the facts
known to the officer reasonably cause him or her to suspect the
person he or she intends to detain might be or has been involved
in criminal activity, the detention is lawful.”].) A court applying
the reasonable suspicion standard must assess “ ‘the totality of
the circumstances’ ” of the detention. (See id. at p. 627.)
Officer Banuelos detained Rouise when the officer exited
the police vehicle, drew his gun, and ordered Rouise to show his
hands. (See People v. Souza (1994) 9 Cal.4th 224, 229 (Souza) [“A
seizure occurs whenever a police officer ‘by means of physical
force or show of authority’ restrains the liberty of a person to
walk away.”].) It is undisputed that the police did not have a
warrant to detain Rouise. The burden thus shifts to the People to
show that Rouise’s detention was supported by reasonable
suspicion. (See Williams, supra, 20 Cal.4th at p. 136; Antonino
Flores, supra, 38 Cal.App.5th at p. 626.)
B. The Trial Court Erred in Concluding the Police
Reasonably Suspected Rouise Was Involved in
Criminal Activity
In denying Rouise’s suppression motion, the trial court
declared: “The totality of the circumstances that the defendant
matched the general description of a person who took off on foot
from a car that was evading police, and was observed, at the time
8
and place of detention, close to where the car that was evading
ultimately stopped; that there was no one else visible in the
location in which the defendant was detained,[6] and that his
conduct was not consistent with innocent activities, specifically
running down an empty street in the middle of the night, and
then diving into an alcove and pretending he was asleep. [¶] So
the court particularized an objective basis for suspecting that he
had been engaged in some kind of criminal activity, and formed a
basis for reasonable suspicion to detain.”
We find tenuous the trial court’s conclusion that because
Rouise was the only Black male found near the location of the
traffic stop, Officer Conrad and Officer Banuelos reasonably
suspected that Rouise was an occupant of the vehicle previously
stopped by police. “[A] number of courts have rejected the notion
that reasonable suspicion for detaining someone may be based
6 Upon asserting that “no one else [was] in the vicinity” of
Rouise’s detention and “[t]here were not even any other cars
present,” the Attorney General notes “the trial court was also
able to view body camera footage from at least one of the
arresting officers,” and cites transcript excerpts showing that the
trial court reviewed certain video clips. The Attorney General
does not describe this body camera footage, let alone provide us
with a copy of it. Accordingly, the Attorney General has not
shown that this footage should have any impact on our review of
the trial court’s ruling. (See Pack v. Kings County Human
Services Agency (2001) 89 Cal.App.4th 821, 826, fn. 5 (Pack)
[“ ‘Although it is the appellant’s task to show error, there is a
corresponding obligation on the part of the respondent to aid the
appellate court in sustaining the judgment. “[I]t is as much the
duty of the respondent to assist the [appellate] court upon the
appeal as it is to properly present a case in the first instance, in
the court below.” [Citations.]’ [Citation.]”].)
9
upon vague or general descriptions”—e.g., race and sex. (See
People v. Walker (2012) 210 Cal.App.4th 1372, 1388–1389.)
Assuming arguendo the trial court’s factual summary were
accurate and that the officers reasonably suspected that Rouise
was one of the two Black males who fled the car, these
circumstances do not justify Rouise’s temporary detention.
This description of the facts indicates the court found
reasonable suspicion based solely on (a) Rouise’s alleged flight
from Officer Kasowski, and (b) Rouise’s attempts to avoid contact
with Officer Conrad and Officer Banuelos—i.e., diving into an
alcove and pretending to be asleep. The former does not give rise
to reasonable suspicion of criminal activity because neither party
suggests that Officer Kasowski “ordered [the two Black males
exiting the vehicle] to remain where they were,” and they “had no
obligation to stay put simply because police had shown up.” (See
Antonino Flores, supra, 38 Cal.App.5th at p. 632.)
Although our high court has held that “flight from police is
a proper consideration—and indeed can be a key factor—in
determining whether in a particular case the police have
sufficient cause to detain,” it has rejected the proposition that
“flight alone, without other indicia of criminal activity, will
justify an investigative stop by police.” (See Souza, supra,9 Cal.4th at pp. 235–239.) Indeed, the United States Supreme
Court “has a long history of recognizing that innocent people may
reasonably flee from police: ‘[I]t is a matter of common
knowledge that men who are entirely innocent do sometimes
fly from the scene of a crime through fear of being apprehended
as the guilty parties, or from an unwillingness to appear
as witnesses.’ . . . [Citation.]” (Antonino Flores, supra,
10
38 Cal.App.5th at pp. 629–630, quoting Alberty v. United States
(1896) 162 U.S. 499, 511.)
Additionally, the Attorney General does not claim the
police reasonably suspected the two fleeing Black males were
accomplices to whatever Vehicle Code violations the driver had
committed. In fact, Officer Kasowski admitted that when he
stopped the car, the two fleeing individuals “had not committed
any driving infractions or any other crime . . . .” Accordingly, the
trial court’s oral ruling does not establish “ ‘the detaining
officers . . . ha[d the requisite] particularized and objective basis
for suspecting the particular person stopped of criminal activity.’
[Citations.]”7 (See Antonino Flores, supra, 38 Cal.App.5th at
p. 627.)
7 By stating the police had “an objective basis for
suspecting that [Rouise] had been engaged in some kind of
criminal activity,” the trial court intimated that reasonable
suspicion of criminality generally (i.e., the detainee is connected
with some as yet unspecified crime)—as opposed to reasonable
suspicion of a particular type of offense (e.g., possession of a
weapon or a traffic violation)—is a sufficient justification for a
warrantless temporary detention. A leading treatise on Fourth
Amendment jurisprudence has noted that “the Supreme Court
has never expressly ruled on this question, and the lower courts
are divided on the issue.” (See 4 LaFave, Search and Seizure
(6th ed. 2020) § 9.5(c).) Because the party charged with justifying
Rouise’s warrantless detention (i.e., the Attorney General)
does not address this question, we need not discuss it further.
(See Williams, supra, 20 Cal.4th at p. 136 [holding that the
prosecution has the burden of showing a warrantless search or
seizure was justified]; Ayala, supra, 23 Cal.4th at p. 255 [noting
that the trial court’s interpretation and application of the law is
subject to de novo review]; see also Pack, supra, 89 Cal.App.4th
11C. The Attorney General Fails to Demonstrate that
Rouise’s Detention Was Nonetheless Justified
The Attorney General raises several arguments to salvage
the trial court’s ruling. First, the Attorney General contends that
“the officers knew that [Rouise] was carrying something in his
hand which, among other things, turned out to be an
incriminating traffic vest.” Even if the detaining officers initially
suspected that Rouise had a weapon or contraband in his hand,
Officer Conrad’s testimony demonstrates that suspicion was
dispelled when he and Officer Banuelos “stopped slightly before”
the alcove and Officer Conrad realized Rouise had actually been
carrying clothing. Furthermore, the Attorney General’s
contention that the clothing “turned out to be an incriminating
traffic vest” is predicated on the Attorney General’s assertions
that Rouise had been carrying “a bright orange traffic vest” and
“Officer Conrad was made aware of an additional description of a
man with an orange vest running through a backyard in the
neighborhood from a 911 caller . . . .” Yet, as the Attorney
General admits, Officer Conrad “was uncertain whether he heard
[the report from the 911 caller] prior to, or after, [Rouise’s]
detention.” The Attorney General has thus failed to direct us to
substantial evidence that at the time Rouise was seized, the
detaining officers reasonably suspected that Rouise may have
committed a trespass in a backyard. (See Castaneda, supra,
35 Cal.App.4th at p. 1227 [noting that the substantial evidence
standard requires us to accept “all reasonable inferences and
deductions” from the evidence, italics added].) Accordingly, the
at p. 826, fn. 5 [explaining that the respondent has a duty to aid
the appellate court in affirming the judgment].)
12
supposed incriminating nature of the clothing in Rouise’s hand
cannot justify his detention. (See Antonino Flores, supra,
38 Cal.App.5th at p. 628 [holding that reasonable suspicion
supporting a warrantless detention must exist “ ‘at the moment
of the detention’ ”].)
In the respondent brief’s factual summary, the
Attorney General asserts that after the two Black males fled from
the vehicle stopped by Officer Kasowski, “[t]he driver of the
car . . . advised Officer Kasowski that he did not stop because he
thought the two Black male subjects were armed, and they told
him not to stop.” Yet, the prosecutor conceded during the
proceedings below that this fact is not pertinent to our analysis
because when Rouise was detained, that is, when
Officer Banuelos exited the police car, drew his gun, and told
Rouise to show his hands, Officer Conrad and Officer Banuelos
were not aware of the driver’s assertions. (See Antonino Flores,
supra, 38 Cal.App.5th at p. 627 [“ ‘Based upon th[e] whole picture
the detaining officers must have a particularized and objective
basis for suspecting the particular person stopped of criminal
activity,’ ” first italics added]; Artal, supra, 111 Cal.App.4th at p.
275, fn. 2 [holding that a party’s arguments may be deemed
admissions against that party].)
The Attorney General further claims that Rouise’s evasive
behavior—i.e., “ ‘running down an empty street in the middle of
the night[ ] and . . . diving into an alcove and pretending he was
asleep’ ”—“was suspicious and . . . inconsistent with someone
engaged in innocent activity.” As we explained in Discussion,
part B, ante, our Supreme Court has held that although “flight
from police is a proper consideration” in assessing the validity of
a detention, “[n]o single fact—for instance, flight from
13
approaching police—can be indicative in all detention cases of
involvement in criminal conduct.” (See Souza, supra, 9 Cal.4th at
pp. 235, 239.) Thus, Rouise’s elusive conduct, standing alone,
does not demonstrate his detention was proper.8
We also reject the Attorney General’s assertion that People
v. Flores,9 establishes Rouise’s evasive behavior justified his
seizure. In Marlon Flores, Division Eight of this court upheld a
trial court’s denial of a motion to suppress a gun, drugs, and drug
paraphernalia that were discovered by officers after they had
detained the defendant. (See Marlon Flores, at pp. 981–982,
review granted.) Two officers encountered the defendant “at
10:00 p.m. at night on a cul-de-sac known for its illegal drug and
gang activity . . . .” (See id. at pp. 982, 986, review granted.)
When the defendant saw the officers, he “duck[ed] behind a car,”
and as “an officer approache[d] to see what [was] going on, the
[defendant] remain[ed] crouched, with his hands out of sight and
with his moving arms away from the approaching officer and his
bright flashlight . . . .” (See id. at p. 986, review granted.)
8 Similarly, we find unpersuasive the Attorney General’s
assertion that Rouise’s “ ‘dive’ into the alcove” late at night placed
“the officers at a tactical disadvantage” warranting his detention
because he was in “a position of cover.” In particular, the
Attorney General does not explain how the officers supposedly
remained at any such tactical disadvantage when, upon moving
closer to the alcove, they were able to observe that Rouise was on
the ground, apparently pretending to be asleep—i.e., he no longer
seemed to be in “a position of cover” vis-à-vis the officers.
9 Our Supreme Court has granted a petition for review of
this decision. (See People v. Flores (2021) 60 Cal.App.5th 978(Marlon Flores), review granted Apr. 21, 2021, S267522).
14
“Despite the approaching light and noise [from the officer’s
radio], the man continue[d] to face away from it, to move his
arms, and to keep his hands out of the officer’s view.” (Marlon
Flores, supra, 60 Cal.App.5th at p. 986, review granted.) The
officers thereafter “ordered [the defendant] to stand and put his
hands on his head[,] [and they] handcuffed [the defendant] out of
concern for their safety”; “[o]ne officer [subsequently] checked
[the defendant] for weapons.” (See id. at pp. 982, 986, review
granted.) The defendant thereafter confirmed that the car he
ducked behind belonged to him. (See id. at p. 982, review
granted.) In the car, officers found a loaded and unlicensed gun,
a bindle of what appeared to be methamphetamine, and a
methamphetamine bong. (See ibid.)
In this case, although Officer Banuelos ordered Rouise to
show his hands, there is no indication that Rouise was moving
his limbs at all when the officers decided to detain him. Rather,
Officer Conrad testified Rouise was “laying on his side with
clothing under his head, pretending to be asleep” just before
Officer Banuelos detained Rouise. Thus, unlike the officers in
Marlon Flores, the detaining officers in the instant matter could
not “point to specific articulable facts” giving rise to reasonable
suspicion that at the moment they detained Rouise, he may have
been drawing a concealed weapon and/or preparing to fire it at
them. (See Antonino Flores, supra, 38 Cal.App.5th at p. 627 [“An
investigative detention is legally justified ‘when the detaining
officer can point to specific articulable facts that, considered in
light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in
criminal activity.’ [Citation.]”]; Marlon Flores, supra,
60 Cal.App.5th at p. 989, review granted [noting that the
15
defendant’s “moving his hands . . . . out of the sight of the
approaching officer” supported the trial court’s finding of
reasonable suspicion].)
We express no opinion as to the correctness of the Marlon
Flores decision because it is distinguishable from our case. We do
note that one of the justices on the panel dissented. (See Marlon
Flores, supra, 60 Cal.App.5th at pp. 990–994 (dis. opn. of
Stratton, J.), review granted.) In that dissent, Justice Stratton
wrote: “The majority’s overbroad view of what sort of conduct can
be deemed suggestive of wrongdoing ignores applicable law and
the realities of 21st century America. In the case of a person
wary of police interaction, the majority’s approach leaves
virtually no room for that person’s conduct to be deemed ‘normal’
and hence not suspicious.” (See Marlon Flores, at p. 990, review
granted.) Justice Stratton further opined that “[t]he majority’s
decision . . . threatens to subject people to [investigative] stops for
commonplace conduct.” (See id. at p. 993, review granted.)
The Attorney General also identifies two offenses that
supposedly warranted the investigative stop: (1) “the officers
were entitled to stop [Rouise] and detain him for an investigation
of ‘Pedestrian on roadway’ in violation of Vehicle Code
section 21956, subdivision (a)”; and (2) “the officers would have
been entitled to investigate [Rouise’s] presence in the alcove,
particularly given the late hour and considering that he appeared
to have dove into it without any apparent business there, to
prevent a burglary.”10
10 The Attorney General tacitly acknowledges the trial
court did not rely upon either justification when it denied
Rouise’s suppression motion.
16
Regarding the first offense, the parties disagree on whether
there was substantial evidence that “Officer Conrad saw a Black
man round the corner at Lemon Avenue, coming westbound on
the south side of Pacific Coast Highway in the middle of the street
directly towards the police car.” (Italics added.) We need not
resolve this factual dispute because regardless of whether the
Attorney General has identified correctly Rouise’s location when
the detaining officers first sighted him, the Attorney General has
not directed us to any evidence showing Rouise was “walk[ing]
upon [a] roadway outside of a business or residence district” such
that Vehicle Code section 21956, subdivision (a) was applicable.11
In fact, Officer Conrad’s testimony suggests that the portion of
the Pacific Coast Highway in which Rouise was trotting may
have been in a “business . . . district” (see Veh. Code, § 21956,
subd. (a)), given the officer acknowledged that “there [are]
businesses on that side of” the highway. Further, the
Attorney General does not argue that Rouise’s supposed presence
in the middle of the roadway gave rise to reasonable suspicion
that he perpetrated any other offense.12
The Attorney General’s contention that “the officers would
have been entitled to investigate” a potential burglary fares no
better. The trial court found, and Officer Conrad’s testimony
indicates, that Rouise “d[ove] into an alcove and pretend[ed] he
11 Vehicle Code section 21956, subdivision (a) provides:
“No pedestrian may walk upon any roadway outside of a business
or residence district otherwise than close to his or her left-hand
edge of the roadway.”
12 We also note the fact that Rouise dove into the alcove
after Officer Conrad first saw him had eliminated any risk of
collision that Rouise initially posed to the officers.
17
was asleep.” Although this behavior evidences Rouise’s desire to
avoid contact with the officers, it does not suggest he was about
to enter a structure proximate to the alcove. (See § 459 [“Every
person who enters any . . . building . . . with intent to commit
grand or petit larceny or any felony is guilty of burglary.”].)
While the Fourth Amendment permitted Officer Conrad and
Officer Banuelos to investigate Rouise’s presence in the alcove by
approaching him and “ ‘asking . . . if he [was] willing to answer
some questions,’ ” (see People v. Hughes (2002) 27 Cal.4th 287,
328), they could not detain him in the absence of “specific
articulable facts that . . . provide some objective manifestation
that [he] may [have] be[en] involved in criminal activity.” (See
Souza, supra, 9 Cal.4th at p. 231.)
Additionally, the Attorney General argues that “the officers
knew that this was a high-crime area and that there had been
two shootings, one of them a murder, within the last two days in
that specific area,” and that they encountered Rouise late at
night. Officer Conrad did testify that on June 28, 2018, a
homicide occurred “in th[e] particular area” in which Rouise was
detained, and that there was another “shooting in that same
area” on June 30, 2018.13 Furthermore, we acknowledge that
“[t]ime, locality, lighting conditions, and an area’s reputation for
criminal activity . . . may or may not suggest to a trained officer
13 In the record excerpt cited by the Attorney General in
connection with this argument, Officer Conrad did not describe
the location of Rouise’s detention as a “high-crime area . . . .”
Thus, it seems the Attorney General’s characterization of this
area is based on Officer Conrad’s testimony that two shootings
had occurred in the vicinity in the days preceding Rouise’s
seizure.
18
that [a] fleeing person is involved in criminal activity.” (See
Souza, supra, 9 Cal.4th at p. 239.)
Entirely absent from the Attorney General’s analysis,
however, are “ ‘specific and articulable facts, which reasonably
caused the officer[s] to believe that . . . [Rouise] was connected to
the [criminal] activity’ ” Officer Conrad had identified—i.e., the
shootings that had occurred in that area. (See Antonino Flores,
supra, 38 Cal.App.5th at p. 628, italics omitted.) It follows that
the Attorney General has not shown these circumstances
supplied the detaining officers with reasonable suspicion to stop
Rouise. Were we to hold otherwise, officers could detain any
person who was in that area at a late hour and had exercised his
or her right to avoid having an interaction with the police. (See
Souza, supra, 9 Cal.4th at p. 241 [“ ‘[I]t may be fairly said that
our entire nation is a high crime area[.]’ ”]; Antonino Flores, at
p. 630 [“[L]ike flight, presence in a ‘high crime area’ is probative,
but not sufficient on its own to justify a detention.”].)
Lastly, the Attorney General claims “the trial court
correctly observed that the detention was not prolonged, because
it was [Rouise] himself who caused it to persist by not complying,
by attempting to run from the officers, and then fighting with
them in violation of section 148, subdivision (a)(1).”14 Rouise
clarifies in his reply brief that he “does not dispute this finding,
or otherwise challenge the length of the detention,” and that he
14 Section 148, subdivision (a)(1) bars any person from
“willfully resist[ing], delay[ing], or obstruct[ing] any public
officer[ or] peace officer . . . in the discharge or attempt to
discharge any duty of his or her office or employment . . . .” (See
§ 148, subd. (a)(1).)
19
instead maintains that “the initial detention was [not] supported
by reasonable suspicion.”
In sum, the Attorney General has failed to demonstrate
that Rouise’s warrantless seizure comported with the Fourth
Amendment. “[T]he Supreme Court [has] developed an
‘exclusionary rule,’ which generally prohibits evidence obtained
in violation of the Fourth Amendment from being used in
criminal trials.’ [Citations.]” (People v. Marquez (2019) 31
Cal.App.5th 402, 411.) The Attorney General does not argue that
any exception to that general rule applies. We thus conclude that
the trial court should have granted the suppression motion and
excluded the firearm seized by the officers that formed the basis
of count 1. (See Pack, supra, 89 Cal.App.4th at p. 826, fn. 5.)
DISPOSITION
The judgment is reversed, and the matter is remanded to
the trial court with directions to vacate its order denying
defendant Nakia Terrell Rouise’s suppression motion, enter a
new order granting the motion, and conduct further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J. CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
20