• Consensual encounters 
• Detentions 
• Show of authority 

A “show of authority” by law enforcement officers may convert an intended consensual encounter into a detention. If such a detention is not accompanied by evidence that the detainee is engaged in criminal conduct, then the detention is illegal, requiring the suppression of any resulting evidence. The discovery during an unlawful detention that a detainee is on parole makes such a discovery, and the results of a parole search, subject to suppression. 

Defendant Jeremiah Paul was observed by two Los Angeles Police Department officers sitting in his Toyota Prius around 9 p.m. on March 7, 2020, in a residential area. The officers first noticed Paul because he was sitting there with his vehicle’s lights on. As the officers drove up next to Paul’s car, one of the officers “illuminated the Prius with his flashlight.” In response, Paul sunk lower in his seat as if “conceal[ing] himself from [the officers’] view,” an action Paul later denied, and the significance of, the court never discussed. One of the officers patrolled this area regularly and knew that a parolee lived across the street from where the Prius was parked. The driving officer then backed up the patrol car and stopped in the middle of the street with his headlights pointing straight down the road, putting the patrol car a vehicle length behind Paul’s car, thus allowing room for him to drive away should he choose to do so.  

That officer then got out of the patrol vehicle and walked to the driver’s side of the Prius while illuminating that side of the car with his flashlight. The second officer did the same on the passenger’s side. The driver’s side window was rolled up, but the door was partially open. The officer, who was standing two to three feet from the door, opened it further and spoke to Paul, asking him innocuous questions such as, “How ya doin’, man ” During a short back-and-forth between the two establishing that they were both doing “all right” and “good,” the officer asked Paul if he lived at that location, to which defendant said that he did. A few more seconds into this unenlightening, yet low-key, conversation, it culminated with the officer asking: “Any probation or parole ” Paul responded that he was on parole.  The officers therefore conducted a parole search of the car, recovering an illegal firearm. Paul was arrested and charged in state court with possessing a firearm with a prior violent conviction (Pen. Code § 29900(a)(1)). After his motion to suppress the firearm was denied, he pleaded “no contest” and appealed. 

The Second District Court of Appeal, Division 5, reversed.  

The issue on appeal was whether Paul was “detained,” or only “consensually encountered.” It was not contested by the People that if Paul was detained, then the discovery of his parole status, occurring during an unlawful detention, was illegal, and any resulting evidence (the firearm) should have been suppressed. If only consensually encountered, Paul’s admission to being on parole would have occurred during that lawful conversation, making the discovery of his parole status and the recovery of the firearm lawful. The applicable legal standards here are clear: “An illegal detention that uncovers evidence is generally subject to the exclusionary rule, which dictates the unlawfully obtained evidence be suppressed as ‘fruit of the poisonous tree.’” (People v. Kasrawi (2021) 65 Cal.App.5th 751, 761.)  

A suspect who is subjected to a “show of authority” by the police will generally be held to have been detained. “The test for the existence of a show of authority is an objective one and does not take into account the perceptions of the particular person involved. [Citation.] The test is ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’” (People v. Garry (2007) 156 Cal.App.4th 1100, at p. 1106.) “This includes an examination of both an officer’s verbal and nonverbal actions to ‘assess the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.’” (Id. at p. 1110.) The “totality of the circumstances” is to be considered when evaluating these circumstances.  

Clearly, the officers here intended for their contact with defendant to be nothing more than a consensual encounter. As noted by the court, they parked their patrol car behind and to the side of the Prius, purposely leaving room for him to drive away should he choose to do so. They used their flashlights only, choosing not to “spotlight” Paul. In addressing him, the officer’s questions to him “appear to have been non-confrontational in tone and language up to the point when (defendant) stated that he was a parolee.”  

Despite officers’ apparent efforts to keep everything low key, however, the court found the contact to be a detention. Specifically, the court ruled that despite the location where the officers parked the patrol car, “the officers’ subsequent positioning of their bodies (as they walked up to defendant’s car) blocked (defendant) from either driving away or departing on foot.” “(Defendant) could not have exited the vehicle with (the one officer) standing there (by the driver’s side door), nor could (defendant) have pulled the Prius out and driven away without either engaging or endangering (that officer).” “Moreover, the presence of (the other officer) on the passenger side of the vehicle prevented (defendant) from sliding across the seat and exiting on foot without engaging (that officer.)”  

Further, the court was critical of the officers approaching Paul from both sides of his vehicle while shining “their flashlights into the Prius from close range, right at the car door windows.” The court found this action alone to be “a display of authority that would lead an objective person to believe that he or she was suspected of wrongdoing, both because more than one officer approached and because the officers shined their flashlights on (defendant) from opposite angles, effectively illuminating him on all sides.”  

The court also was critical of the officers for “approaching (defendant) while he was talking on his phone inside a legally parked vehicle with the windows rolled up,” noting that Paul “could not reasonably decline to interact with the officers without suspending or ending his phone conversation and at least engaging in a brief conversation with them.”  

The court concluded that this set of “circumstances would lead an objectively reasonable person to believe that the officers required their attention and that they could not simply depart.” Based upon this version of the circumstances, the court ruled that such a “show of authority” converted the intended consensual encounter into a detention that was not supported by any reason to believe defendant might have been engaging in criminal conduct. As such, the detention was illegal, requiring the suppression of the firearm as a product of that illegal detention. 

Simply amazing! The three appellate court justices who wrote and/or signed off on this decision need to go on a ride-along and get a first-hand taste of the realities and dangers of police work in the field, particularly at night. Until they do so, they’ll never understand the dangers inherent in their suggestions to the officers here regarding how they should be handling themselves in the field during a nighttime police-citizen contact. 

The court went so far to hint that one officer should have stayed in the patrol car, or at the very least, that “the officers could have approached the Prius from the same side of the vehicle and engaged (defendant) in casual conversation.” Continuing, the justices criticize the officers for having “flanked the Prius and approached from both sides while shining their flashlights into the vehicle,” apparently suggesting they leave their flashlights in the patrol car.  

The court also criticized the officers for having approached Paul at all while he was on his cellphone, suggesting that they politely wait in the patrol car until he finish his phone call. Any officer who even thinks about complying with this advice would be subject to disciplinary actions by his supervisors for unnecessarily endangering himself and his partner.  

In my opinion, the trial court judge who denied Paul’s motion to suppress had a much firmer grasp on realities of the real world, noting in his ruling that “(1) the patrol car was not blocking the Prius and nothing prevented (defendant) from backing up and departing, (2) the officers’ flashlights provided the only illumination of the Prius; the police did not use spotlights or headlights, (3) the officers did not approach the Prius at a brisk pace, (4) the officers did not touch (defendant) before he stated that he was on parole. (5) (only) two officers were present, and (6) (the one officer’s) tone when addressing (defendant) was casual and conversational before (defendant) stated he was on parole.”  

If this wasn’t enough to set up a classic consensual encounter situation, then we’re never going to have one in any nighttime contact of a vehicle’s occupants. I didn’t name the officers in this case due to a LEGALUPDATES.COM policy of avoiding unnecessary embarrassment to officers when evidence is suppressed. But I could have. They did nothing wrong here. To the contrary, they did everything by the book. I am hopeful that this decision gets appealed.