Boitez v. The Superior Court

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JUAN BOITEZ, Petitioner, v. THE SUPERIOR COURT OF YOLO COUNTY, Respondent;

THE PEOPLE, Real Party in Interest.

C098102

California Court of Appeals, Third District, Yolo

November 7, 2023

ORIGINAL PROCEEDINGS in mandate or prohibition Super. Ct. No CR20222508. Tom M. Dyer, Judge. Petition granted.

Tracie Olson, Public Defender, and Aram Davtyan, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Clara M. Levers, Deputy Attorneys General, for Real Party in Interest.

ROBIE ACTING P. J.

The Fourth Amendment protects citizens from warrantless searches of their property or person unless the search falls under an established exception to the warrant requirement. (Schneckloth v. Bustamonte (1973) 412 U.S. 218 219.) One such exception is a person's consent to a search, which is the focus of this case. (Ibid.) The prosecution must show by a preponderance of the evidence that a defendant's consent was voluntarily given. (People v. James (1977) 19 Cal.3d 99, 106 & fn. 4.)

"The voluntariness of the consent is in every case 'a question of fact to be determined in the light of all the circumstances.'" (People v. James supra, 19 Cal.3d at p. 106.) As part of the calculus in determining whether a defendant's consent to search was voluntarily given, courts must consider any evidence that a police officer made a misrepresentation that prompted the defendant's acquiescence to the search. (U.S. v. Vazquez (1st Cir. 2013) 724 F.3d 15, 19 (Vazquez).)

Petitioner Juan Boitez is a criminal defendant in the underlying case; he filed a motion to suppress the evidence obtained during a search of his mother's car. After the trial court denied his motion, petitioner filed a petition for writ of mandate or prohibition (petition). We will refer to petitioner hereafter as defendant.

The question in this case is whether defendant gave voluntary consent for the police to search his mother's car after he was pulled over for a traffic violation. As a material part of obtaining defendant's consent, the police officer falsely, but apparently with subjective belief that it was true, stated that he had the authority to tow defendant's mother's car, but would not do so if defendant consented to the search. More precisely, we consider whether, but for the police officer's false promise of leniency as to the towing of defendant's mother's car, the prosecution met its burden by a preponderance of the evidence that defendant's consent was uncoerced. (Vazquez, supra, 724 F.3d at p. 18.)

We conclude the prosecution did not meet its burden. We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant's consent to the search, and thus, under the totality of the circumstances, defendant's consent was not voluntarily given. As part of our analysis, we adopt the reasoning of the First Circuit Court of Appeals that the question of voluntary consent cannot be based on the subjective good faith of a police officer in making the false statement that induced the defendant's consent to search. (Vazquez, supra, 724 F.3d at pp. 23-24; cf. U.S. v. Richard (5th Cir. 1993) 994 F.2d 244, 251, 252 [consent valid when police officers honestly but inaccurately informed the subject of the search that her boyfriend had already consented to a search of their motel room].) We issue a peremptory writ of mandate directing the trial court to vacate its order denying the motion to suppress and to enter a new order granting the motion.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent evidence as to the motion to suppress ruling consists of a video recorded via the body camera worn by City of Winters Police Officer Gordon Brown and Officer Brown's testimony at the hearing.

Defendant was driving his mother's car with a passenger in the front seat at approximately 7:00 p.m. when Officer Brown pulled him over for failing to come to a complete stop at an intersection. Defendant pulled over in a residential cul-de-sac; the car was partially in the roadway because both right tires were not within 18 inches of the curb, but the car was not impeding traffic.

Officer Brown asked defendant if he had his license, registration and insurance. Defendant responded he did not. Officer Brown then asked whether defendant had a driver's license issued to him; defendant replied he did not and said something unintelligible. Defendant did, however, have a California identification card, which he provided to Officer Brown.

Officer Brown asked the passenger whether he had an identification card or a driver's license; the passenger replied he did not. Officer Brown asked both defendant and the passenger whether they were on probation or parole or "anything like that." Defendant replied, "[N]o, not that I know." Officer Brown followed up by asking whether either of them were "on it recently." Defendant said he thought he was on formal probation.

Officer Brown asked defendant for his address and told defendant and the passenger to "hang tight." By that time, approximately three and a half minutes into the stop, another police vehicle was at the scene and Officer Brown asked defendant to turn his car engine off. As another officer approached him, Officer Brown said, "Bad guys."

Officer Brown transmitted the information provided by defendant and the passenger to his office. While the officers were waiting for a response, the other officer told Officer Brown that he believed he had seen the car and defendant before and mentioned, "Bad guys." After a short unintelligible exchange, Officer Brown said, "[T]hey probably have dope on them."

Officer Brown started writing out a ticket and told the other officer, "When somebody tells you they don't know that . . . they're not on parole that they know of, that's kind of a sign that they're probably not doing good stuff." The other officer asked, "Are they all tatted up?" Officer Brown replied, "You just get that vibe, you know what I mean?" After the other officer said something unintelligible, Officer Brown continued, "They're dirty dudes, man."

At approximately seven minutes into the stop the other officer went to the car because he believed defendant was trying to get out of the car. The other officer returned to Officer Brown approximately 15 seconds later and mentioned defendant wanted to eat food. The other officer also mentioned that he saw a blue bandana, to which Officer Brown responded, "These are bad guys dude. I . . . know exactly what you're talking about. I grew up with bad guys; these are fucking bad guys." During their continued conversation, Officer Brown told the other officer, "I need you to be ready for these guys." Approximately one and a half minutes later, Officer Brown looked at his computer and said, "Gang member, yeah."

Officer Brown told the other officer he believed the passenger had a valid identification card or driver's license, but said he suspected the passenger was also a gang member. Although Officer Brown said he found defendant to be respectful, he added, "[T]hey're just bad guys, dude." Officer Brown then told the other officer that he had a plan depending on how defendant reacted, which included to have the passenger drive the car. Officer Brown was clear that his plan depended on his conversation with defendant.

Officer Brown told the other officer he wanted "to pull them out" and search the car but he wondered whether defendant would let him do that. The other officer responded they could remove defendant and the passenger from the car while Officer Brown wrote the citation and "just say, you know, for safety." The two police officers decided that Officer Brown would ask defendant to step out of the car first.

Approximately 14 minutes into the stop, Officer Brown walked up to the driver's side of the car and the other officer walked up to the passenger's side of the car. Officer Brown asked defendant to get out of the car and to sit on the bumper of his police vehicle. Officer Brown asked defendant what he and his passenger were doing in town, to which defendant responded they were getting food and his sister lived close by. Defendant said they were not "coming for no [sic] trouble." When defendant's phone rang, he apologized and told Officer Brown his sister was calling. Officer Brown said, "If you'll be cool with me, I'll be cool with you." Defendant responded, "[Y]eah."

Officer Brown asked defendant whether he was "still banging." Defendant replied he was not. When Officer Brown asked defendant about the "blue rag" in his hands, defendant said that he uses it for work. Officer Brown asked defendant whether he was a Sureno member and defendant replied, "Yeah," but that he was "just doing [his] own thing" and he no longer represented the gang. When Officer Brown asked whether defendant had a family, he said he did.

Officer Brown reiterated that defendant had a suspended license and said it looked like the passenger "maybe has a license." Defendant replied the passenger did not have a license. At that point defendant's sister walked up and Officer Brown told her to stay back because he was "dealing with" defendant. He added, "You can stand back over there, you can come over here in a little bit. Okay? You have a license?" Defendant's sister confirmed she had a license and moved out of the video frame. The video shows the other officer was still standing at the passenger's side of the car during this exchange.

Officer Brown turned his attention back to defendant and said "So, I could tow your car right now, but I won't do that, okay? I didn't see any insurance paperwork." Defendant responded he was "pretty...