Filed 7/22/20; Certified for publication 8/7/20 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                  (San Joaquin)
                                                         ----




 THE PEOPLE,                                                                C087681

                   Plaintiff and Appellant,                        (Super. Ct. No. STK-CR-FER-
                                                                           2018-0003729)
          v.

 LEON WILLIAM TACARDON,

                   Defendant and Respondent.




         Defendant Leon William Tacardon was charged with possession of a controlled
substance for sale (Health & Saf. Code, § 11351) and misdemeanor possession of
marijuana for sale (Health & Saf. Code, § 11359). Evidence of these crimes was seized
following an interaction with San Joaquin County Sheriff’s Deputy Joel Grubb, the
details of which will be set forth momentarily. After an unsuccessful motion to suppress




                                                           1
the evidence made during the preliminary hearing pursuant to Penal Code1 section
1538.5, defendant renewed the motion in the superior court under section 995 and
prevailed. The People appeal. We reverse.
                                     BACKGROUND
       The facts are taken from the evidence presented at the hearing on defendant’s
motion to suppress.
       Deputy Grubb testified that at 8:45 p.m. on March 20, 2018, he was in uniform
and driving a marked patrol car, with its high beams on, on Fairway Drive in Stockton.2
The deputy saw a gray BMW legally parked between two houses with its engine and
headlights off. Three people were in the BMW, two of whom were reclining in the front
seats wearing hooded sweatshirts. Smoke was coming out of the car windows that were
slightly cracked open.
       Deputy Grubb made a U-turn, pulled up 15 to 20 feet behind the BMW, and
parked, intending to contact the persons inside. He did not activate his siren or
emergency lights, but turned on his spotlight to illuminate the car’s interior. He got out
and began to approach the car; his weapon was not drawn.
       As Deputy Grubb approached the BMW, the passenger who had been in the rear
seat, M.K., jumped out and closed the door behind her, moving very quickly and “kind of
abrupt[ly].” Her conduct struck the deputy as “unusual” and caused him to be concerned
for his safety, although he did not see anything in her hands or any bulge in her clothing,
and she did not make any movements that appeared threatening.



1      Undesignated statutory references are to the Penal Code.
2       According to Deputy Grubb, the search took place in “west Stockton,” a high-
crime, high-drug area. However, the immediate neighborhood was known as Riviera
Cliffs and was adjacent to “the Country Club area.” The deputy did not know how many
drug arrests had recently been made in Riviera Cliffs or how the drug arrest rate there
compared to that in other parts of west Stockton.

                                             2
       When M.K. got to the rear of the BMW, Deputy Grubb asked her what she was
doing. She replied: “I live here.” The deputy asked her to stay outside the car and near
the sidewalk behind it, where he could observe her and react in time in case she were
armed or began to act irrationally. He did not draw his gun or Taser and spoke in a
“moderate” and “fairly calm” voice. She complied with his orders.
       Deputy Grubb did not smell marijuana before M.K. got out of the BMW, as he
was not close enough to the car yet. However, he smelled the substance at about the time
she got out and he made contact with her.3 At that point, the deputy did not consider any
of the car’s occupants free to leave. The deputy then approached the BMW, using his
flashlight to illuminate the interior because the rear windows were tinted. On the rear
passenger floorboard, he saw three large clear plastic bags, the largest at least eight
inches across and “kind of tied off,” containing a green leafy substance. He also saw a
custom-rolled dark brown and green cigarette in the center console, containing a burnt
green leafy substance; he did not believe it was lit.
       Deputy Grubb contacted the two men in the front seat and asked for their
identification. Defendant, who was in the driver’s seat, did not produce identification but
gave his name and said he was on probation. The front seat passenger produced
identification that the deputy took and retained while speaking to the men. The deputy
told defendant to stay in the car.
       Deputy Grubb returned to his patrol car and conducted a records check that
confirmed the identifications of the BMW’s occupants and showed defendant was on
searchable probation. The deputy secured defendant in the back of the patrol car.
       Along with other deputies, Deputy Grubb conducted a probation search of the
BMW. The search uncovered, in addition to the plastic bags, an unlabeled prescription



3      The deputy stated that detaining M.K. and smelling the marijuana happened “all
kind of simultaneously.”

                                              3
vial containing 76 suspected hydrocodone pills in a storage area near the passenger-side
rear door. Defendant was arrested, and $1,904 was found on his person.
       Laboratory analysis showed the plastic bags contained 696.3 grams of marijuana
and the pills were hydrocodone. An expert opined both substances were possessed for
purposes of sale.
                                   The Magistrate’s Ruling
       After hearing argument on the suppression motion, the magistrate ruled:
       “Deputy Grubb said that he was on Fairway Drive, which is in Riviera Cliffs,
which I always thought was one of the wealthier areas of Stockton, but he said it[] . . . has
a high crime rate. . . . I’ve been a judge for 34 years. I don’t recall that many cases
coming out of Riviera Cliffs. In any case, he saw a BMW with three people in it at
8:45 p.m., March 20th of 2018. And two are in the front, one was in the back. And he
saw smoke. The windows were cracked. I took that to mean they were open a small
amount. The engine was not running. The vehicle was not moving. He . . . was going to
contact the people. So he turned on his spotlight and illuminated the vehicle. At that
point, the female passenger from the back seat exited quickly, jumped out, as he
described it. Then he . . . said that -- and this was subject to quite a few questions -- that I
think what happened was as she -- up until then, he didn’t smell marijuana. When she
opened the door, he told her to stop. At that point, he did not smell the marijuana. But
then more or less -- well, a little bit after she opened the door, a little bit after he told her
to stop, he smelled the marijuana. And he told her . . . to stay in his vision for safety. So
then . . . he used . . . his flashlight. And he turned the flashlight -- he had the flashlight
on. And he can see large clear plastic bags with green leafy substance, approximately
eight inches in diameter, in plain sight in the vehicle. This was as a result of looking
through the windows with a flashlight. That . . . is not considered a search. He saw a
cigarette in the center console that was rolled. It was dark, a burned substance, but it was
a green leafy substance. I guess it was a combination of both. As it turned out, the

                                                4
substance was marijuana, . . . 696.3 grams. So there were three baggies. So I would say
this is approximately half a pound per bag. And after all this happened -- and this all
happened pretty quickly. Once he flashed his light on the vehicle and observed the
material, he then asked for ID from the defendant. The defendant didn’t have it. Then he
obtained the name and date of birth from the defendant. And he subsequently recovered
the marijuana. He . . . also discovered a vial of 76 pills in the passenger door, which were
determined to be [O]xycodone. So then he arrested the defendant.
       “[I]t’s not against the law to possess an ounce, but if it’s more than an ounce, then
it’s against the law. In other words, possession for sale of marijuana is still a felony.[4]
So I think the officer had probable cause to believe that . . . this was more than an ounce
that he saw in plain sight. I think 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. And so the question
is were his Fourth Amendment rights violated. And I’m going to say even with the new
law about marijuana, . . . they were not violated. . . . [B]ecause all this happened so
quickly, . . . and the vehicle was stopped already, I don’t think his Fourth Amendment
rights were violated. I think it was a valid search. In other words, after the officer saw
this, he was entitled to seize it. And the search of the . . . passenger side door would be a
search incident to a lawful arrest.
       “So here we had ample amount of marijuana and -- now, as far as the
[O]xycodone, was that possessed for sale? Well, it might be possessed for personal use.
Very possibly. But the issue for a preliminary examination is is there reasonable and




4      After defense counsel questioned this finding, the magistrate determined that
under current law that was already in effect at the time of the search, possession of
marijuana for sale is a misdemeanor. The magistrate then held defendant to answer on
count 2 as a misdemeanor.

                                               5
probable cause to believe that a felony was committed. And I think there’s certainly
enough evidence to say . . . it certainly could be possessed for sale. Also we have a
$1,904 in cash. There could be an innocent reason for the defendant to possess $1,900.
Maybe he was going to pay his rent with it, but maybe he wasn’t. But in any case, I think
there’s enough for a preliminary examination. So the 1538.5 is denied.”
                             Ruling on the Section 995 Motion
       As mentioned, defendant’s section 995 motion renewed his challenge to the search
and seizure. After hearing argument on the motion, the superior court ruled:
       “[T]he test for a temporary detention is an officer may temporarily detain a person
suspected of criminal activity for only so long a period of time as is reasonably necessary
to confirm or dispel such suspicions. At the point in time the officer pulled in behind the
vehicle, it was . . . a consensual contact. He didn’t have his red lights on, he didn’t order
anyone to do anything.
       “When the female got out of the car and he said it was for officer’s safety and
ordered her to stop, he detained her. That’s . . . a detention. And he also said in his
testimony the other individuals were detained in the car. . And even though . . . it doesn’t
matter what he thought -- but to give it any commonsense logic, if he’s thinking they’re
detained, wouldn’t a reasonable person think they were detained? And the test for the
temporary detention is is the officer able to articulate particular facts that support a
reasonable suspicion that the person is involved in criminal activity? . . . [T]his may be
the highest crime-rate area ever. There may have been a million reasons justifiable as to
why he detained the people in the car prior to smelling the marijuana. But the problem
was, he couldn’t articulate those things. When you read through the transcripts, when
he’s asked open-ended why he’s doing this, he doesn’t testify to any of that.
       “So I’m gonna grant the defendant’s motion. The evidence is suppressed and the
case is dismissed.”
       This appeal followed.

                                               6
                                       DISCUSSION
                                              I
                                    Standard of Review
       “A criminal defendant is permitted to challenge the reasonableness of a search or
seizure by making a motion to suppress at the preliminary hearing. [Citation.] If the
defendant is unsuccessful at the preliminary hearing, he or she may raise the search and
seizure matter before the superior court under the standards governing a section 995
motion. [Citations.]” (People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.) In
ruling on a suppression issue as part of a section 995 motion, “the superior court’s role is
similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a
judgment. [Citation.] The superior court merely reviews the evidence; it does not
substitute its judgment on the weight of the evidence nor does it resolve factual conflicts.
[Citation.]” (McDonald, at p. 529.)
       On appeal from a superior court’s grant of a section 995 motion based on the
conclusion a search or seizure was unreasonable, we “ ‘must draw all presumptions in
favor of the magistrate’s factual determinations, and we must uphold the magistrate’s
express or implied findings if they are supported by substantial evidence. [Citations.]’
[Citation.] ‘We judge the legality of the search by “measur[ing] the facts, as found by the
[magistrate], against the constitutional standard of reasonableness.” [Citation.] Thus, in
determining whether the search or seizure was reasonable on the facts found by the
magistrate, we exercise our independent judgment. [Citation.]’ [Citation.]” (People v.
Magee (2011) 194 Cal.App.4th 178, 182-183.)
                                             II
                       The Challenged Detention Was Reasonable
       The Attorney General argues the superior court erred in concluding defendant was
detained when Deputy Grubb ordered M.K. to stay outside the car and near the sidewalk
behind it. According to the Attorney General, regardless of whether M.K. was detained

                                              7
at that point, defendant was not detained until after Deputy Grubb smelled marijuana and
saw three large bags of the substance on the rear floorboard of the BMW, at which point,
“the deputy had reasonable suspicion that criminal activity was afoot.” In response,
defendant argues the superior court correctly determined a reasonable person in
defendant’s position would not have felt free to leave when the deputy prevented M.K.
from going into her house and ordered her to remain by the BMW.
       After the initial briefing was submitted, our colleagues at the Fourth Appellate
District decided People v. Kidd (2019) 36 Cal.App.5th 12 (Kidd), holding the defendant
in that case, who was also in a parked car at night, “was detained when the officer made a
U-turn to pull in behind him and trained spotlights on his car.” (Id. at p. 21.) We granted
the Attorney General’s request to file supplemental briefing addressing the new case.
Having reviewed the supplemental briefing filed by the Attorney General and defendant,
we agree with the Attorney General’s assessment of when the detention occurred and
conclude it was supported by reasonable suspicion.5
       “[N]ot all personal intercourse between policemen and citizens involves ‘seizures’
of persons. Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889].) Our Supreme
Court has explained: “As long as a reasonable person would feel free to disregard the
police and go about his or her business, the encounter is consensual and no reasonable
suspicion is required on the part of the officer. . . . ‘[I]n order to determine whether a
particular encounter constitutes a seizure, a court must consider all the circumstances




5       This conclusion makes it unnecessary to address the Attorney General’s
alternative argument that discovery of defendant’s probation search condition was an
intervening independent circumstance justifying the search and attenuating any taint from
an initial unreasonable detention.

                                              8
surrounding the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the officers’
requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive
effect of police conduct as a whole, rather than emphasizing particular details of that
conduct in isolation. [Citation.] Circumstances establishing a seizure might include any
of the following: the presence of several officers, an officer’s display of a weapon, some
physical touching of the person, or the use of language or of a tone of voice indicating
that compliance with the officer’s request might be compelled. [Citations.] 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 Manuel G. (1997) 16 Cal.4th 805, 821.)
       It is settled that the driver and occupants of a vehicle are detained when a police
officer blocks the vehicle’s only means of departure with the officer’s patrol car. (People
v. Wilkins (1986) 186 Cal.App.3d 804, 809 [detention occurred when officer in marked
patrol car parked diagonally behind defendant’s vehicle so it could not exit parking lot].)
However, “[w]ithout more, a law enforcement officer simply parking behind a defendant
would not reasonably be construed as a detention.” (Kidd, supra, 36 Cal.App.5th at
p. 21, citing People v. Franklin (1987) 192 Cal.App.3d 935, 940.) It is also settled that
the use of emergency lights is a sufficient show of authority to communicate to a
reasonable person that he or she is not free to leave. (People v. Bailey (1985) 176
Cal.App.3d 402, 405-406 [“reasonable person to whom the red light from a vehicle is
directed would be expected to recognize the signal to stop or otherwise be available to the
officer”].) However, “[w]ithout more, a law enforcement officer shining a spotlight on a
person does not constitute a detention.” (Kidd, supra, 36 Cal.App.5th at p. 21, citing
People v. Rico (1979) 97 Cal.App.3d 124, 128-129; People v. Franklin, supra, 192
Cal.App.3d at p. 940.)



                                             9
       For example, in People v. Perez (1989) 211 Cal.App.3d 1492 (Perez), a police
officer parked his patrol car in front of Perez’s vehicle, leaving “plenty of room” for
Perez to drive away, and activated both spotlights on the patrol car “to get a better look at
the occupants and gauge their reactions.” (Id. at p. 1494.) The officer then walked over
to the car, tapped on the window, and asked the driver to roll down the window. (Ibid.)
The appellate court concluded: “[T]he conduct of the officer here did not manifest police
authority to the degree leading a reasonable person to conclude he was not free to leave.
While the use of high beams and spotlights might cause a reasonable person to feel
himself [or herself] the object of official scrutiny, such directed scrutiny does not amount
to a detention. [Citations.]” (Id. at p. 1496.)
       In contrast, People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) involved more
than the use of a spotlight to illuminate the person under scrutiny. As the appellate court
explained, the following circumstances amounted to a sufficient show of authority to
communicate to a reasonable person in the defendant’s position that he was not free to
leave: “[A]fter only five to eight seconds of observing defendant[, a pedestrian,] from his
marked police vehicle, [the officer] bathed defendant in light, exited his police vehicle,
and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half, three seconds’
directly to him while questioning him about his legal status. Furthermore, [the officer]
immediately questioned defendant about his probation and parole status, disregarding
defendant’s indication that he was merely standing outside his home. In other words,
rather than engage in a conversation, [the officer] immediately and pointedly inquired
about defendant’s legal status as he quickly approached.” (Id. at pp. 1111-1112, fn.
omitted.)
       Here, as in Perez, there is no evidence in the record indicating that the BMW was
blocked in by Deputy Grubb’s patrol car. Nor does the fact that the deputy pulled up
behind the BMW, activated the patrol car’s spotlight, and approached the vehicle on foot,
manifest a sufficient show of police authority to constitute a detention. Unlike Garry, the

                                              10
deputy did not quickly close the gap between himself and defendant or immediately and
aggressively question him rather than engage in conversation. Nor does defendant argue,
either in his initial briefing or in his supplemental brief, that a detention occurred when
the deputy illuminated the BMW with the spotlight and began to approach on foot. We
nevertheless pause the sequence of events here because Kidd, supra, 36 Cal.App.5th 12,
holds to the contrary.
       In Kidd, a police officer on patrol in a marked police car at night saw a car with
two occupants parked on a residential street with its fog lights on. The officer drove past
the car, made a U-turn, parked about 10 feet behind the car, and illuminated the car with
two spotlights. He then got out of his car and approached the parked car on foot,
detecting a strong marijuana odor as he did so. When the officer reached the driver’s
window, he shined his flashlight in the car and asked the occupants what they were
doing. Ultimately determining the driver was subject to searchable probation, the
subsequent search of the car uncovered drugs and a firearm. (Kidd, supra, 36
Cal.App.5th at pp. 15-16.) Relying on Garry, the appellate court held these
circumstances constituted a detention: “Taking into account the totality of the
circumstances, we find 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 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 [or she] 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, according to record, not made in a particularly



                                             11
aggressive or intimidating manner, a reasonable person in Kidd’s circumstances would
not have felt free to leave.” (Kidd, at pp. 21-22.)
       We disagree with this analysis for the reasons expressed in Perez, a decision the
Kidd opinion inexplicably ignores. 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.” (Perez, supra, 211
Cal.App.3d at p. 1496.)
       Turning to the question of whether Deputy Grubb’s interaction with the backseat
passenger, M.K., after she got out of the car, in addition to the foregoing events,
amounted to a detention, we have no difficulty concluding M.K. was detained at that
point. As to her, in addition to the spotlight, the deputy ordered her to remain on the
sidewalk near the BMW. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [detention
occurred when officer shined spotlight on defendant, stopped the patrol car, got out and
commanded defendant to approach].) However, there is no evidence defendant observed
the deputy’s interaction with M.K., or that the deputy conveyed to defendant that he, like
M.K., was required to remain. (See Florida v. Bostick (1991) 501 U.S. 429, 434-437
[115 L.Ed.2d 389, 398-400] [no seizure when officers question a person, ask for
identification, and request consent for search, so long as officers do not convey message
that compliance required].) We conclude the magistrate’s implied finding that defendant
was not detained at this point is supported by substantial evidence.
       Nevertheless, the superior court set this finding aside and found defendant was
detained even before the deputy contacted him, apparently because the deputy testified he
did not subjectively consider the car’s occupants free to leave after he had contacted
M.K.6 Because the superior court should not have made new factual findings on a



6     After citing the deputy’s testimony, the superior court stated: “[I]t doesn’t matter
what he thought.” However, the court then added that according to “commonsense

                                             12
section 995 motion, and because the deputy’s uncommunicated state of mind would not
have suggested to a reasonable person in defendant’s position that he was not free to
leave, we disregard the superior court’s finding on this question. (See People v. Magee,
supra, 194 Cal.App.4th at p. 182; People v. McDonald, supra, 137 Cal.App.4th at
p. 529.)
       Based on the magistrate’s factual findings expressed on the record and supported
by substantial evidence, we conclude defendant was detained by Deputy Grubb not when
the deputy detained M.K., but when the deputy, after smelling marijuana coming from
the BMW and seeing three large bags of the substance on the rear floorboard, told
defendant to remain in the car while he conducted a records check. At that point, there
can be no doubt the deputy possessed reasonable suspicion defendant was engaged in
criminal activity. (See People v. Fews (2018) 27 Cal.App.5th 553, 560 [officers smelled
and saw marijuana in vehicle, supplying reasonable suspicion the defendant may have
been unlawfully transporting the substance].)
       We conclude the superior court erred by setting aside the magistrate’s ruling
denying defendant’s motion to suppress evidence. We therefore grant the relief requested
by the Attorney General.




logic,” “if he’s thinking they’re detained, wouldn’t a reasonable person think they were
detained?” The answer is no: if an officer has not said or done anything to cause a
reasonable person to think he or she is detained, the officer’s unspoken thoughts are
irrelevant. (In re Manuel G., supra, 16 Cal.4th at p. 821.)

                                            13
                                     DISPOSITION
      The superior court’s order is reversed, and the matter is remanded with directions
to reinstate the information and the magistrate’s order denying defendant’s motion to
suppress evidence.



                                                 /s/
                                                HOCH, J.

We concur:



 /s/
ROBIE, Acting P. J.



 /s/
BUTZ, J.*




* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                           14
Filed 8/7/20
                             CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (San Joaquin)
                                             ----




 THE PEOPLE,                                                        C087681

                 Plaintiff and Appellant,                (Super. Ct. No. STK-CR-FER-
                                                                 2018-0003729)
          v.
                                                        ORDER CERTIFYING OPINION
 LEON WILLIAM TACARDON,                                     FOR PUBLICATION

                 Defendant and Respondent.              [NO CHANGE IN JUDGMENT]


      APPEAL from a judgment of the Superior Court of San Joaquin County, Michael
J. Mulvihill, Judge. Reversed with directions.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen,
and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Appellant.

      Paul Kleven, under appointment by the Court of Appeal, for Defendant and
Respondent.


THE COURT:


        The opinion in the above-entitled matter filed on July 22, 2020, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion


                                              1
should be published in the Official Reports and it is so ordered.


FOR THE COURT:




 /s/
ROBIE, Acting P. J.



 /s/
HOCH, J.



 /s/
BUTZ, J.*




* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                             2
