People v. Bailey

¶1Opinion

¶2Defendant Russell Bailey pleaded not guilty to charges of possession of cocaine and denied allegations of prior convictions. His motion to suppress evidence under Penal Code section 1538.5 was granted and the case dismissed. The People appeal.

¶3At issue is the validity of a consent to search given in the presence of an officer who has directed a red light toward appellant’s vehicle.

¶4An officer in an unmarked police car saw a vehicle occupied by a single person in the parking lot of a Sears store which was closed. The area was one in which persons from a nearby establishment would come to their cars to ingest drugs. The officer pulled in behind the car and turned on his emergency lights, red and blue in front and amber to the rear. The officer approached the car to see what the person was doing. As he was a few feet from the car he smelled marijuana. He spoke to the occupant and asked for consent to search. Consent was given by the occupant. The officer searched and found contraband material. The officer testified that as he approached the car, the occupant was not free to leave.

¶5Consent can be given to a search, but the consent must be unequivocal, specific, and freely and intelligently given. (Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [57 Cal.Rptr. 623, 425 P.2d 223].) The *405consent must be voluntary and not in response to any express or implied assertion of authority. Conversely, if the consent is given because of an unlawful assertion of authority, it is not voluntary and is unlawful. (Florida v. Royer (1983) 460 U.S. 491 [75 L.Ed.2d 229, 103 S.Ct. 1319]; Wilson v. Superior Court (1983) 34 Cal.3d 777 [195 Cal.Rptr. 671, 670 P.2d 325].)

¶6The United States Supreme Court has identified three categories of police contact with persons. The first is referred to as a “consensual encounter” in which there is no restraint on the person’s liberty. There need be no objective justification for such an encounter. The second type, called “detention,” involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur “if there is an articulable suspicion that a person has committed or is about to commit a crime.” The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. (Florida v. Royer, supra,460 U.S. 491; Wilson v. Superior Court, supra,34 Cal.3d 777.)

¶7In Wilson, the California Supreme Court held that because Wilson had been detained without an objective, articulable basis for the detention, the detention was a violation of Wilson’s Fourth Amendment rights and his consent to a search was not voluntary.

¶8The officer here did not have an articulable reason to detain when he turned on his emergency lights. He intended to approach respondent’s vehicle simply to see what the occupant was doing. The officer was not possessed of any articulable suspicion that the person was committing any crime or about to do so. He knew that some persons committed crimes in the area, but there was no basis for stating that respondent was doing so.

¶9If the officer’s contact was simply a consensual encounter, a consent could be solicited without violation of the person’s Fourth Amendment rights. If the contact was in the nature of a detention as defined in Royer, but without the necessary basis therefor, the consent would not be voluntary and would be inadmissible.

¶10Such an unauthorized seizure occurs when the circumstances surely amount to a show of official authority such that “a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509, 100 S.Ct. 1870]; Wilson v. Superior Court, supra, at p. 789.)

¶11A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be *406available to the officer. Any 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. The trial court so held. This court also comes to the same conclusion, exercising its independent judgment in doing so. (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].)

¶12The circumstances thus show an exercise of official authority such that respondent, under the standard of a reasonable person, would have believed he was not free to leave. He was seized, under the detention category of contact, without the necessary basis therefor, and his consent was therefore involuntary. The evidence produced from the consent was therefore properly suppressed.

¶13The officer’s statement as to his state of mind at the time he turned on his emergency equipment, that the driver was not free to leave, is not relevant. His communication of that state of mind by energizing the signal to stop or to stay is relevant.

¶14Appellant’s argument of inevitable discovery is not helpful. The issue was not raised during trial and it would be inappropriate to raise it for the first time on appeal. The application of the doctrine of inevitable discovery would involve factual matters which are not in the record and which respondent has not had an opportunity to present. The show of authority began when the red light went on. We have no way of knowing from the record, and respondent has had no opportunity to offer evidence, that respondent would or would not have moved away before the officer approached, had it not been for the signal to remain. (People v. Miller (1972) 7 Cal.3d 219, 227 [101 Cal.Rptr. 860, 496 P.2d 1228]; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 198 [101 Cal.Rptr. 837, 496 P.2d 1205].)

¶15The motion to suppress was properly granted. Judgment is affirmed.

¶16Panelli, P. J., concurred.