People v. Kasrawi

65 Cal.App.5th 751

280 Cal.Rptr.3d 214

The PEOPLE, Plaintiff and Respondent,

v.Omar J. KASRAWI, Defendant and Appellant.

D077139

Court of Appeal, Fourth District, Division 1, California.

Filed June 16, 2021

Russell Sheridan Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, CA, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

Defendant Omar Kasrawi was apprehended in an affluent neighborhood in possession of property he had stolen from some nearby cars. Although the officer who stopped and ultimately arrested him acted on no more than a hunch, detaining Kasrawi after watching him innocuously cross the street to his legally parked car, he subsequently learned that Kasrawi had an outstanding arrest warrant. Supreme Court precedent compels our conclusion that despite the Fourth Amendment violation, the evidence need not be suppressed. This case falls into a narrow exception to the exclusionary rule that applies where a law enforcement officer discovers the defendant's outstanding warrant after an illegal stop but before a search yields evidence of a crime. Under these limited circumstances, discovery of the warrant can attenuate the taint of the original detention.

On these grounds, we affirm the denial of Kasrawi's suppression motion. We also conclude that Kasrawi's later and unrelated theft of property from a car in a condominium guest parking garage was properly deemed a residential burglary. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On an April morning around 4:00 a.m., San Diego Police Officer John Pardue was driving his regular patrol route in Del Mar when he saw Kasrawi cross a residential street and begin to enter his Toyota Prius. Because Pardue rarely saw people during his nighttime patrol, knew of two car burglaries in the area in the past week, and did not recognize that particular Prius, his interest was piqued. In addition to his patrol car headlights, which had already provided enough illumination for Pardue to see Kasrawi crossing the street, Pardue flipped on his spotlight and pulled up behind and to the side of the Prius, flooding Kasrawi with a bright light. Pardue's Body Worn Camera (BWC) captured most of the encounter.¹

Kasrawi stopped getting into his car and turned to face Pardue, who immediately exited his patrol car, walked around to the front, and stopped a few feet away as he asked Kasrawi where he was coming from. Kasrawi responded that he was resting on a drive down from Los Angeles—an answer Pardue found unsatisfying because the residential street was several turns away from Interstate 5. Pardue suspected that Kasrawi was actually casing vehicles. He directed Kasrawi to take a seat on the front bumper of the patrol car and informed him that he was being detained as he secured handcuffs to his wrists. This whole exchange, from the time Pardue parked his car to when he handcuffed Kasrawi, took about fifteen seconds.

After learning that Kasrawi had a warrant, Pardue placed him under arrest. A subsequent search incident to arrest yielded stolen items from nearby cars in Kasrawi's pockets and his Prius, from fistfuls of loose change to gift cards and purses. At some point after his arrest, Kasrawi attempted to discard a bindle of methamphetamine, but an officer who arrived to help Pardue noticed when Kasrawi dropped the small package.

Kasrawi was charged with six counts related to these car burglaries, the stolen items, and possession of methamphetamine. Two months later, following his pretrial release from jail, he was again arrested after he stole property from a vehicle in a condominium parking garage. These additional charges were later consolidated with his earlier case.

Following trial, Kasrawi was convicted of (count 1) vehicle tampering ( Pen. Code, § 459 ),² (count 3) grand theft of personal property (§ 487, subd. (a)), (count 5) possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ), (count 6) obtaining personal identifying information with intent to defraud (§ 530.5, subd. (c)(1)), and (counts 7 and 8) two counts of burglary, one in the first degree ( §§ 459 and 460, subd. (a) ).

DISCUSSION

A. Although Kasrawi Was Improperly Detained, the Discovery of His Outstanding Arrest Warrant Attenuated Any Taint So that Evidence Obtained During the Subsequent Search Was Admissible.

Kasrawi moved to suppress the evidence from the April incident on the basis that Pardue illegally detained him, making the fruits of the detention inadmissible. ( § 1538.5.) At the suppression hearing, defense counsel argued that Pardue detained Kasrawi immediately upon confronting him, before Pardue had any reasonable basis to believe Kasrawi might be involved in illegal activity. Counsel gave particular weight to Pardue's use of his spotlight. The prosecution countered that the detention did not begin until after the brief exchange where Kasrawi offered a suspicious explanation for his presence in the neighborhood. Although the trial court considered the issue a "close call," it ultimately agreed with the People, noting that it considered Pardue's actions reasonable and denying Kasrawi's motion to suppress.

Kasrawi renews his suppression argument on appeal. After surveying similar cases and considering the manner in which Pardue confronted Kasrawi—including his use of the spotlight, the position of his car, how quickly he got out and walked to Kasrawi, and the immediate, direct question he posed—we conclude that Kasrawi was detained before he responded to Pardue's inquiry. A reasonable person would not feel free to terminate such an encounter with law enforcement. Furthermore, the detention was unlawful because the factors known to Pardue at that point gave rise to no more than a mere hunch that Kasrawi might be involved in criminal activity. But we nonetheless affirm the denial of Kasrawi's motion to suppress on grounds not argued by either party in their briefs, but compulsory on this court: a limited exception to the exclusionary rule that applies when an officer's illegal stop is followed by their discovery of an outstanding warrant, as pronounced in both People v. Brendlin (2008) 45 Cal.4th 262, 85 Cal.Rptr.3d 496, 195 P.3d 1074 ( Brendlin ) and Utah v. Strieff (2016) ––– U.S. ––––, 136 S.Ct. 2056, 2059, 195 L.Ed.2d 400 ( Strieff ).

1. When was Kasrawi detained?

The Fourth Amendment and California's counterpart protect the public from unreasonable searches and seizures. ( U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) This protection extends to "brief investigatory stops" ( In re Edgerrin J. (2020) 57 Cal.App.5th 752, 759, 271 Cal.Rptr.3d 610 ) because "it is the right of every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law." ( In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957 ( Tony C. ).) Of course, interference is warranted so long as law enforcement officers abide by the standards that govern different encounters. Generally, police contact with individuals in public places will fall into one of three categories: (1) a consensual encounter, which involves "no restraint on the person's liberty" and thus "need[s] no objective justification," (2) a detention, which "involves a seizure of the individual for a limited duration and for limited purposes" and is constitutional only when facts known to the officer give rise to a reasonable suspicion that the person is involved in some illegal activity, and (3) an arrest, which must be justified by probable cause. ( People v. Bailey (1985) 176 Cal.App.3d 402, 405, 222 Cal.Rptr. 235, citing Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229.) Both parties agree Kasrawi was detained at some point, so the question of when he was detained becomes critical. This issue turns on whether Kasrawi's encounter with Pardue (a) began in the consensual category and ripened into a detention, or (b) was a detention from the outset.

The People argue the first view; Kasrawi urges the second is the proper characterization. To determine which is correct, we apply the principle that when law enforcement officers make some show of authority toward an individual, they have detained the person if " ‘ "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." ’ " ( People v. Brown (2015) 61 Cal.4th 968, 974, 190 Cal.Rptr.3d 583, 353 P.3d 305 ; quoting Brendlin v. California (2007) 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 ).

A notable factor in this case reflecting a show of authority is the officer's use of a sustained spotlight on an individual at night, which undoubtedly signals on the otherwise empty street that the individual is "the focus of the officer's particularized suspicion." ( Wilson v. Superior Court (1983) 34 Cal.3d 777, 791, 195 Cal.Rptr. 671, 670 P.2d 325.) But an individual's knowledge that an officer is focused on them does not necessarily mean that person is detained. Indeed, appellate courts have consistently held that an officer's use of a spotlight alone is not enough to effect a detention. ( People v. Kidd (2019) 36 Cal.App.5th 12, 21, 248 Cal.Rptr.3d 234 ( Kidd ); People v. Rico (1979) 97 Cal.App.3d 124, 130, 158 Cal.Rptr. 573 ( Rico ).) There must be other factors present that remove ambiguity as to whether the person is free to leave.

A brief survey of other cases involving spotlights is instructive here. In Rico, supra , 97 Cal.App.3d 124, 158 Cal.Rptr. 573, an officer responding to reports of a shooting momentarily shined his spotlight into the cabin of another car as he drove beside it. He then "immediately pulled back without any show of authority" and...