Santa Cruz County Superior Court, Case No.: F20171, Trial Judge: Hon. Paul P. Burdick.
[165 Cal.Rptr.3d 575] Laurence K. Sullivan, John Michael Chamberlain, Office of the Attorney General for Plaintiff/Respondent.
Matthew T. Bogosian, Law Office of Matthew T. Bogosian, Marina, Sixth District Appellate Program for Defendant/Appellant.
In this appeal we conclude that the unlawfulness of a suspicionless vehicle detention is not retroactively cured when one of the passengers turns out to be a probationer with a search condition.
Defendant Marcus Taylor Bates pleaded no contest to felony grand theft from a person (Penal Code, § 487, subd. (c)) after he unsuccessfully moved to suppress evidence resulting from a traffic stop. For the reasons stated herein, we will reverse the Superior Court's denial of defendant's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following factual background is derived from the testimony of Deputies Russell Skelton and Robert Gidding at the hearing on defendant's suppression motion. On December 13, 2010, at approximately 1:15 p.m., deputy sheriffs responded to a disturbance involving two males [165 Cal.Rptr.3d 576] and one female near the corner of Soquel Drive and 41st Avenue in Soquel. Deputies Skelton and Gidding, as well as other deputies, arrived at the same time and interviewed the three people present. One of the individuals, Kyle Shelton, reported that his cellular phone had been taken from him. The theft occurred near the corner of Soquel Drive and Robertson Road, approximately 300 yards from the 41st Avenue location.
Shelton described the assailant to Deputy Skelton as a black male, just older than high school age, wearing a navy blue shirt, navy blue pants, and a navy blue jacket. Shelton also told the deputy he had seen the assailant around the area before, and that the assailant's name might be " Marcus." The other male present when the deputies arrived was Shelton's uncle, Michael Lesui, who recited Shelton's statements that the perpetrator threatened to shoot Shelton if he did not give up his phone and that the perpetrator drove a gold van.
Deputy Fenster, who also responded to the disturbance call, learned that defendant was a felony probationer who matched the general description of the assailant and lived in a nearby apartment complex. After learning defendant's probation terms included a warrantless search condition, Deputy Fenster directed Deputy Gidding to drive to the apartment complex where defendant lived and to stop the gold van used by defendant's family if he saw it leave the complex.
At approximately 3:00 p.m., deputy sheriffs, including Deputies Fenster and Skelton, arrived at the apartment complex to search defendant's residence. Deputy Skelton testified that as he was walking toward the complex, he saw a black male adult between 5 feet 9 inches and 6 feet tall wearing a blue sweatshirt walking beside the fence separating the apartment complex from an adjacent mobile home park. After Deputy Skelton lost sight of the individual, he informed the other deputies over the radio that a person matching the assailant's general description was walking west toward the mobile home park. Based on that information and a statement from another deputy that the person walking could be Marcus Bates, Deputy Gidding drove part way through the mobile home park and stopped his patrol car on the side of the park's single access road.
Within two minutes of Deputy Skelton's radio broadcast, Deputy Gidding noticed a tan car driving toward the park's exit. Deputy Gidding got out of his patrol car and signaled the car to stop.
Deputy Gidding's method of stopping the tan car is unclear from the record. The trial court indicated Deputy Gidding started to raise his hand when testifying in court about stopping the tan car, suggesting he made the same gesture when he pulled the car over. However, the trial court did not specifically make a finding on this point. According to Deputy Gidding's testimony, the sole observation he made about the tan car was that there were people in it. Though the testimony is vague, it appears that when he stopped the car he could see a white female driver, a black male in the front passenger seat, and a third passenger in the back seat. ...