• Consensual Encounters
• Detentions
• Observations Made During an Illegal Detention

Observations made by a law enforcement officer, indicating that a person may be armed, when those observations occur during an illegal detention, are illegal in themselves.  A firearm found as a result of an illegal observation is to be suppressed as a product of that illegal observation.

In early June, 2020, Los Angeles and other surrounding cities had been experiencing wide-spread looting and rioting following a “Black Lives Matter” protest.  As noted in the dissenting opinion, “there was great unrest throughout (Los Angeles) county. . . . National Guard troops and police officers guarded the barricaded steps of Los Angeles City Hall and tried to restore order in Santa Monica and Long Beach. For two days, looters spent hours vandalizing and breaking into stores, stealing items and setting fires in Los Angeles, Santa Monica, and Long Beach. Hundreds were arrested on suspicion of burglary, looting, vandalism, failure to disperse, and firearms and curfew violations. Five Los Angeles Police Department officers were injured, with two of them hospitalized.”  As a result, a 6 p.m. to 6 a.m. curfew had been imposed. At 2:15 a.m. on June 3, Los Angeles Sheriff’s Deputy Xavier Zeas and his partner—while patrolling the City of Commerce area in a marked patrol car—observed defendant Oscar Cuadra standing next to a parked car in a motel parking lot.  The parking lot was no more than a narrow strip of asphalt, with five parking stalls, sandwiched in between the motel and a fence fronting on Triggs Ave.  Acknowledging in later testimony that the curfew did not apply to private property, Deputy Zeas drove up to defendant anyway and, while still sitting in his patrol car, asked him if he was aware of the curfew.  Defendant responded that he was not.  Deputy Zeas then asked defendant if he was on parole or probation.  Defendant told the deputy that he was in fact on probation.  Deciding (subjectively) at this point to detain defendant, Deputy Zeas and his partner exited their patrol car and asked defendant to walk over to the hood of their car.  Defendant reacted to this request by stepping backwards while raising both hands and asking the officers why they were “attempting to detain” him when he had done nothing wrong.  As defendant raised his hands, Deputy Zeas saw a “bulge” in defendant’s right front pants pocket. The deputy described the bulge as “pretty big” and consistent with the shape of a firearm. Before Deputy Zeas could react to what he had just observed, defendant “spontaneously” told the deputies that he had a gun.  Defendant was ordered to the ground.  A patdown search resulted in the recovery of a loaded .38 caliber revolver from defendant’s front pants pocket.  Defendant was charged in state court with the illegal possession of a firearm by a felon (per P.C. § 29800(a)(1)).  His subsequent motion to suppress the firearm as the product of an illegal detention was denied.  After pleading “no contest,” defendant appealed.

The Second District Court of Appeal (Div. 8), in a split (2-to-1) decision, reversed.  On appeal, the sole issue was the legality of the observation of the bulge in defendant’s clothing and the subsequent recovery of the firearm.  The answer to this question depends upon when defendant, in the sequence of events, had been detained, and the legality of that detention.  The initial contact with defendant, with the officers not even getting out of their patrol car, was obviously lawful. “(B)rief encounters between police and citizens . . . require no objective justification.”  Such a contact is commonly referred to as a “consensual encounter.”  At some point, however, defendant had been “detained,” as this term is defined by the case law.  A detention—often referred to as an “investigatory stop”—requires, to be lawful, that there be “an objective manifestation of a reasonable articulable suspicion that criminal activity is afoot and that (the person detained) was a person engaged in, or about to engage in, criminal activity (Terry v. Ohio (1968) 392 U.S. 1; People v. Souza (1994) 9 Cal.4th 224, 230.)  A simple consensual encounter can easily morph into a detention where officers, in contacting a suspect, exhibit a “show of authority” over the suspect that, under the circumstances, would cause a reasonable person to no longer feel free to leave. As noted by the Court: “A consensual encounter may ripen into a seizure for Fourth Amendment purposes ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” (People v. Brown (2015) 61 Cal.4th 968, 974, quoting Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.)  The test is an “objective” one (i.e., what would a reasonable person believe under the circumstances ), with neither the officer’s nor the suspect’s subjective beliefs being relevant.  The majority of the Court here held that upon telling defendant to move to the hood of the patrol car, what was initially no more than a consensual encounter was quickly elevated into a detention for which there was no articulable evidence in support.  Whether Deputy Zeas was asking or commanding defendant to move to the hood of the patrol car is irrelevant.  Either way, the Court held that “no person would feel free to leave” under such a circumstance.  In so holding, the Court further rejected the People’s argument that there was no detention at this point because defendant had not actually submitted to the officers’ show of authority.  (See California v. Hodari D. (1991) 499 U.S. 621.) To the contrary, the Court found it significant that in response to Deputy Zeas’ request (or command) about moving towards the patrol car, defendant instead stepped back while raising his arms, referring to such an action as a “universally acknowledged submission to authority.”  Per the Court, “people do not put up both hands and step back while still facing the police if they believe they can just walk away.” Doing so—instead of turning and walking or running away—evidenced defendant’s submission to the officer’s authority.  Defendant, therefore, was detained at this point despite the lack of any articulable reasonable suspicion justifying such a detention.  It wasn’t until this point that Deputy Zeas observed the budge in defendant’s pants pocket.  As the product of an unlawful detention, this observation, and the subsequent recovery of defendant’s firearm, was illegal.  There being no reasonable suspicion at that point to believe defendant was engaged in anything illegal, defendant’s detention was unlawful.  The firearm should have been suppressed.

The dissenting opinion written by Justice Elizabeth Grimes disagreed with the majority decision on several points.  Specifically, given the fact that Los Angeles and its surrounding cities (including, apparently, the City of Commerce) were experiencing some significant rioting and looting at the time, contacting and detaining defendant in order to investigate his possible connection to such rioting, was, in Justice Grimes’ opinion, reasonable.  I find it hard to argue with this conclusion.  In fact, it could just as reasonably be argued that Deputy Zeas and his partner would have been derelict in their duty had they not done so.  Coming across a person at 2:15 in the morning, who admits to having a criminal history, standing next to an apparently unoccupied vehicle, during a time and in a place where a curfew—triggered by widespread rioting and looting—is in effect, certainly demands an investigation into that person’s reasons for being at that location at that time.  Justice Grimes also agreed with the People’s argument that up until that point in time when defendant was ordered to the ground, it was only an attempted detention.  In Hodari D, the U.S. Supreme Court tells us that merely threatening an unlawful detention is not unlawful in itself.  By the time defendant had been ordered to the ground, Deputy Zeas had already observed the bulge in defendant’s pocket and defendant had spontaneously confessed to possessing a firearm.  I find this argument to also be reasonable.  But, in the world of appellate review, the majority rules.  So unless and until taken up to the California Supreme Court, we’re stuck with this questionable decision.