People v. Sweet CA3

Filed 1/27/22 P. v. Sweet CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091282
Plaintiff and Respondent, (Super. Ct. No. 18FE001579)
v. ORDER MODIFYING
OPINION AND DENYING
DEANNA LEIA SWEET, REHEARING
Defendant and Appellant. [NO CHANGE IN
JUDGMENT]
It is ordered that the nonpublished opinion filed herein on January 4, 2022, be modified
as follows:
On page 8, the fifth sentence in the paragraph under the heading “Analysis,” that reads
“We have the benefit of photographs and a video in the record that illustrate far better
than testimony the relative positions of the two cars” is modified to read “We have the
benefit of the video in the record that illustrates far better than testimony the relative
positions of the two cars.”
There is no change in judgment.
1
Respondent’s petition for rehearing is denied.
BY THE COURT:
/s/
RAYE, P. J.
/s/
MURRAY, J.
/s/
HOCH, J.
2
Filed 1/4/22 P. v. Sweet CA3 (unmodified opinion)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091282
Plaintiff and Respondent, (Super. Ct. No. 18FE001579)
v.
DEANNA LEIA SWEET,
Defendant and Appellant.
Defendant Deanna Leia Sweet was found guilty of driving under the influence.
Before trial, defendant moved to suppress evidence found after the police officer
contacted her in her car. The trial court denied the motion, finding the contact was
consensual. Defendant appeals, contending the officer detained her illegally. We
reverse, concluding the circumstances rendered the contact nonconsensual and there was
no reasonable suspicion of criminal activity.
BACKGROUND
In the evening of January 24, 2018, Fulton-El Camino Park Police Sergeant Taylor
Magaziner followed a car after he saw what he thought might be a drug deal with the
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driver. After the car stopped, Sergeant Magaziner got out of his patrol car and spoke with
the driver, whom he later identified as defendant. The car smelled like alcohol, defendant
stumbled out of the car, and a can of beer fell out of the car. Defendant later failed
several field sobriety tests and then submitted to a blood test that showed a blood-alcohol
concentration of 0.15 percent.
Defendant was charged with driving under the influence (DUI) of an alcoholic
beverage within 10 years of three prior convictions for similar offenses (Veh. Code,
§§ 23152, subd. (a), 23550), driving with a blood-alcohol content in excess of 0.08
percent within 10 years of three prior convictions for similar offenses (Veh. Code,
§§ 23152, subd. (b), 23550), and misdemeanor driving on a suspended or revoked license
after a DUI conviction (Veh. Code, § 14601.2, subd. (a)).
Defendant filed a motion to suppress all evidence discovered after Sergeant
Magaziner approached her car. On October 25, 2018, the trial court held a hearing on the
motion, where Sergeant Magaziner was the only witness to testify. He said it was dark
and raining when he was driving his patrol car around 6:45 p.m. on January 24, 2018. As
he was driving by a liquor store parking lot he noticed a man outside the driver’s window
of a car “making animated movements” towards the car’s driver, but there was no
physical contact. Sergeant Magaziner understood these gestures to indicate they were
“communicating,” maybe “an argument, altercation, or some sort of excitement between”
the two people. The man saw Sergeant Magaziner and walked away, and the driver
looked back towards Sergeant Magaziner, who noticed the driver was female. From this
behavior, his understanding of the interaction then changed to believing it was a possible
drug deal. He testified he believed both individuals saw his “marked patrol vehicle . . . so
it may not have been me they saw, but the vehicle.”
Sergeant Magaziner drove into the parking lot and as he passed the car, the car
backed out of the parking spot and headed in the opposite direction of the patrol car
around a corner to the rear of the liquor store. Sergeant Magaziner temporarily lost sight
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of the car as he turned around in the parking lot and then followed the car around the
corner, seeing it come to a stop over a couple parking stalls in what he described as a
“jerky-type” stop. Sergeant Magaziner parked his patrol car “behind the vehicle by
approximately seven feet, nosed in behind it.” He confirmed that the front of his patrol
car was “to the rear of the suspect vehicle.” He also turned on the patrol car’s rear lights
and “forward-facing spot lamp,” but had not activated the siren or emergency lights yet.
After turning on the car’s rear lights and spot lamp, Sergeant Magaziner walked to
the driver of the car, whom he identified in court as defendant, and asked how she was
doing. He confirmed he had not made the determination she was under the influence of
alcohol before this, but initiated the contact because of the way she drove and parked
across the lines, and his “curiosity from the contact with the individual outside the car.”
Once he spoke with defendant, he “could smell the odor of alcoholic beverages” and
noticed defendant had “slurred speech and showed signs of someone who could have
been under the influence of alcohol.” After a records check indicating defendant did not
have a valid driver’s license, Sergeant Magaziner activated his overhead emergency
lights because he “[a]t that point . . . believe[d] she was under the influence of alcohol
while driving.” The court then viewed a video from another officer’s patrol car that
showed the position of defendant’s and Sergeant Magaziner’s cars.
The trial court denied the motion to suppress. It found that though defendant’s
activity before Sergeant Magaziner contacted her was “unusual or peculiar to a law
enforcement officer,” and “mildly of interest,” he never detained her: “[H]e doesn’t pull
in behind her, activate his lights, tell her she can’t move; he parks in a position—and you
can see it more on the video—where, if she wanted to, I suppose, she could have just
driven away, and she would have been entitled, I suppose, to have done that. [¶] He gets
out, makes contact. There is no video, but he says, hey, is everything going okay?
What’s going on? And at the point they make contact, he immediately notices all the
objective signs; alcohol on her breath, slurred speech, and he goes back to his car because
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he has made the determination at this point that he’s going to turn this into a DUI
investigation. [¶] . . . [¶] Law enforcement can walk up and talk to anybody on the
planet they want to, just like you and I can. You don’t have to talk to them. You don’t
have to subject yourself to any authority. If you want to drive away, you’re entitled to do
that.”
Defendant’s counsel asserted Sergeant Magaziner parked behind defendant, which
made the encounter nonconsensual. The trial court rewatched the video and stated: “I
don’t find the police officer’s car was parked directly—in fact, it’s clearly not parked
directly behind her vehicle; it is offset to it. [¶] And . . . there is a good deal of distance
between that wall and the front end of her vehicle.”
On October 30, 2019, a jury found defendant guilty on all counts and the trial
court found true defendant’s three prior DUI convictions. On December 2, 2019, the trial
court sentenced defendant to 16 months (low term) for the DUI conviction but stayed
execution of the sentence pending successful completion of five years of formal
probation, and imposed but stayed sentences on the remaining counts under Penal Code
section 654. The court also imposed the minimum fines and fees, including a $300
restitution fine (Pen. Code, § 1202.4, subd. (b)), a $300 imposed and stayed probation
revocation fine (Pen. Code, § 1202.44), three $40 court security fees (Pen. Code,
§ 1465.8, subd. (a)(1)), and three $30 court facility fees (Gov. Code, § 70373).
DISCUSSION
Defendant argues she was nonconsensually detained without reasonable suspicion
that she was involved in any criminal activity, so the evidence discovered during and
after the encounter must be suppressed. The People counter the interaction was
consensual because defendant was not blocked, leaving her free to leave, and even if it
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was a detention, there was reasonable suspicion of a crime. We conclude defendant has
the better argument.1
I
Was There a Detention?
Legal Standards
“Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual’s liberty. [Citations.] Our present inquiry concerns the
distinction between consensual encounters and detentions. Consensual encounters do not
trigger Fourth Amendment scrutiny. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th
805, 821.)
An officer simply approaching an individual and asking a few questions does not
constitute a detention and will not trigger Fourth Amendment scrutiny unless it loses its
consensual nature. (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389,
398].) An encounter remains consensual as long as a reasonable person would feel free
“ ‘to disregard the police and go about his business.’ ” (Ibid.) A consensual encounter
transforms into a detention when the officer, by means of physical force or show of
authority, in some manner restrains the individual’s liberty. (Ibid.)
To determine whether a particular encounter constitutes a detention, courts must
consider all the surrounding circumstances to ascertain whether the police conduct would
have communicated to a reasonable person that he or she was not free to decline the
officer’s requests or to terminate the encounter. (Florida v. Bostick, supra, 501 U.S. at1 Reversing on this issue, we do not address defendant’s additional argument challenging
the fines and fees imposed.
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p. 439.) This test assesses the coercive effect of the police conduct as a whole, rather
than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut
(1988) 486 U.S. 567, 573 [100 L.Ed.2d 565, 572].) The officer’s uncommunicated state
of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a
seizure triggering Fourth Amendment scrutiny has occurred. (In re Christopher B.
(1990) 219 Cal.App.3d 455, 460.)
In evaluating whether the contact between defendant and Sergeant Magaziner was
consensual or a detention, “we view the record in the light most favorable to the trial
court’s ruling and defer to its findings of historical fact, whether express or implied, if
they are supported by substantial evidence. We then decide for ourselves what legal
principles are relevant, independently apply them to the historical facts, and determine as
a matter of law whether there has been an unreasonable search and/or seizure.”
(People v. Miranda (1993) 17 Cal.App.4th 917, 922; accord, People v. Glaser (1995)
11 Cal.4th 354, 362.)
There are several California cases that elucidate these principles in circumstances
similar to the present case. In People v. Perez (1989) 211 Cal.App.3d 1492, an officer
parked “head on” with the defendant’s car but “left plenty of room for [the] defendant to
drive away,” activated the patrol car’s spotlights, but not the emergency lights, walked up
to the car and tapped on the window with his flashlight, shined the flashlight into the car,
and asked the defendant to roll down the windows; the defendant complied and the
officer noticed signs of intoxication. (Id. at pp. 1494-1495.) The appellate court found
there was no detention because, “[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.)
In People v. Kidd (2019) 36 Cal.App.5th 12, an officer passed a car with its fog
lights on late one night, “made a U-turn, and parked about 10 feet behind the car, which
had another car parked about 10 feet in front of it. The officer pointed two spotlights—
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one by his driver’s side mirror, the other on the overhead light bar—at the occupied car,
and then exited his patrol vehicle.” (Id. at p. 15.) The appellate court found the officer
detained the driver because, though he did not block the car in and did not use emergency
lights, “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 . . . .’ [Citation.] Moreover, any ambiguity 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.” (Id. at pp. 21-22.)
In People v. Tacardon (2020) 53 Cal.App.5th 89, review granted October 14,
2020, S264219, an officer drove by a car with smoke coming out of its windows, made a
U-turn, parked 15 to 20 feet behind the car, got out of his patrol car and approached the
car, used his flashlight to look into the car, and then spoke with the driver. (Id. at pp. 92-
93.) A different panel of this court found the driver had not been detained because the
car had not been blocked, nor did the fact the officer “activated the patrol car’s spotlight,
and approached the vehicle on foot, manifest a sufficient show of police authority to
constitute a detention.” (Id. at p. 99.) We disagreed with Kidd, which had substantially
similar facts, concluding “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, citing People v. Perez,
supra, 211 Cal.App.3d at p. 1496.)
Finally, in People v. Kasrawi (2021) 65 Cal.App.5th 751, review granted
September 1, 2021, S270040, an officer saw the defendant walk to his car at 4:00 a.m. on
a residential street, turned on the patrol car’s spotlight “flooding [the defendant] with a
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bright light,” and pulled up behind and to the side of the defendant’s car. (Id. at pp. 754-
755.) The defendant stopped getting into his car and faced the officer, who immediately
exited the patrol car and asked the man where he was coming from. (Id. at p. 755.) The
appellate court found the spotlight alone was insufficient for a detention, but that coupled
with the proximity of the two cars, the officer’s immediate exit and immediate advance,
and his immediate questions of the defendant rendered the confrontation nonconsensual.
(Id. at pp. 759, 760.)
These cases confirm the interaction must be analyzed holistically, looking at all
the circumstances. But there are some bright lines. Blocking a car’s egress will
constitute a detention. (People v. Tacardon, supra, 53 Cal.App.5th at p. 98, review
granted.) So will using emergency lights. (Ibid.) But using a spotlight by itself is not a
detention without more. (People v. Kasrawi, supra, 65 Cal.App.5th at pp. 758-759,
review granted.)
Analysis
Though our review of the record is deferential, the dispositive facts in this case are
undisputed. Defendant was parked and upon noticing Sergeant Magaziner’s patrol car
decided to move her car. Sergeant Magaziner followed her around the corner to the back
of the store where he found her parked close to the building. We need not speculate or
rely on verbal descriptions of the position of Sergeant Magaziner’s patrol car in
relationship to defendant’s car. We have the benefit of photographs and a video in the
record that illustrate far better than testimony the relative positions of the two cars.
Sergeant Magaziner positioned his car so as to make it very difficult, though perhaps not
impossible, for defendant to move her car without hitting the wall in front of her or
Sergeant Magaziner’s car behind. The trial court may have thought, “he parks in a
position—and you can see it more on the video—where, if she wants to, I suppose, she
could have just driven away.” Notwithstanding the trial court’s supposition, any
reasonable interpretation of the video images belies this nonchalance. Faced with a
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uniformed officer in a marked patrol car with a spotlight shining upon them, no law-
abiding citizen would have thought that casually driving away was an option under the
circumstances. Impossibility of egress is not the standard that applies in assessing
whether a person believes he or she is free to leave. It would have been very difficult for
defendant to back up without hitting the patrol car or the approaching Sergeant
Magaziner, and going forward would have required a sharp turn to avoid the wall in front
of her car.
In addition to the spotlight, partial obstruction, and walking to her car, defendant
knew Sergeant Magaziner followed her from the prior lot. Since she already tried to
avoid him once and was unsuccessful, in addition to the other factors, “[a]ny reasonable
person in a similar situation would expect that if he drove off, the officer would respond
by following with red light on and siren sounding in order to accomplish control of the
individual.” (People v. Bailey (1985) 176 Cal.App.3d 402, 406.)
This case therefore involves a stronger show of authority than Tacardon, Kidd,
Perez, and Kasrawi. The officers in both Tacardon and Kidd made U-turns. However,
there was no evidence the drivers originally saw the officer, nor did the drivers then leave
their parking spot, repark, and then have the officer park behind them again. Under these
circumstances we find Sergeant Magaziner detained defendant.
II
Was the Detention Legal?
We must now determine whether Sergeant Magaziner’s detention of defendant
was legal. The trial court did not analyze this issue, instead finding a consensual
encounter. The People assert if there was a detention it was legal because there was a
reasonable suspicion of either: (1) domestic violence, (2) a drug transaction, and/or (3)
driving under the influence. We disagree.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the
driver has violated the law.” (People v. Wells (2006) 38 Cal.4th 1078, 1082.) The
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subjective suspicion must be “objectively reasonable” and supported by “specific,
articulable facts.” (Id. at p. 1083.) “The corollary to this rule, of course, is that an
investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful,
even though the officer may be acting in complete good faith.” (In re Tony C. (1978)
21 Cal.3d 888, 893.) “We exercise independent judgment to determine the legality of the
search or seizure, but we defer to the trial court’s factual findings supported by
substantial evidence.” (People v. Mendoza (2020) 44 Cal.App.5th 1044, 1051.)
Sergeant Magaziner never testified to having a subjective suspicion of criminal
activity before approaching defendant. He said he contacted her because of the way she
drove and parked and his “curiosity” from her discussion with the man before. As the
trial court described it, defendant’s behavior was “unusual or peculiar to a law
enforcement officer” and “mildly of interest.” But this only evidences a hunch
insufficient to support a reasonable suspicion.
The stop was also objectively unreasonable. The man’s “animated movements”
towards defendant did not include any physical contact and were so vague that Sergeant
Magaziner could only definitively conclude they were “communicating.” This could not
support a reasonable suspicion of any past or future violence. There were also no specific
facts of a potential drug deal, only the observation a man was speaking to the driver and
then walked away when he saw the patrol car. Avoiding police contact cannot justify a
detention. (People v. Aldridge (1984) 35 Cal.3d 473, 478 [“the suggestion that an
apparent effort to avoid a police officer may justify a detention has been refuted in
numerous decisions of this court”].) As for a suspicion defendant was driving under the
influence, Sergeant Magaziner did not believe she was under the influence of alcohol
until after he spoke with her, smelled alcohol, and saw she looked intoxicated. Before
this point, he had only seen her coming to a “jerky-stop” across multiple lines, which
violates no laws. Though she was near a liquor store, Sergeant Magaziner did not say he
saw her drinking, holding an alcoholic drink, or entering the store to purchase anything.
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The People provide no legal support, and we have found none, indicating such minimal
evidence could create a reasonable suspicion of driving while under the influence. (See
Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484-1485
[summarizing cases finding weaving between lanes for some distance sufficient for
reasonable suspicion of driving under the influence].)
Under the totality of the circumstances, the evidence indicates Sergeant Magaziner
investigated defendant based on a curiosity, which lead to her detainment. We therefore
conclude Sergeant Magaziner’s detention of defendant was unlawful.
DISPOSITION
The judgment is reversed and the case remanded to the trial court with instructions
to vacate its order denying the motion to suppress, enter a new order granting the motion
to suppress, and conduct further proceedings in accordance with the law.
/s/
RAYE, P. J.
We concur:
/s/
MURRAY, J.
/s/
HOCH, J.
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