People v. Reynolds, H047947

THE PEOPLE, Plaintiff and Respondent, v. RODERICK JAMES REYNOLDS, Defendant and Appellant.

H047947

California Court of Appeals, Sixth District

January 13, 2023

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. C1913097)

Wilson, J.

Following the denial of his motion to suppress evidence, Roderick James Reynolds pleaded no contest to one misdemeanor count of resisting an officer (Pen. Code, § 148, subd (a)(1))^[1] and one felony count of accessory after the fact of a felony (§ 32). He also admitted having a prior strike conviction (§ 1170.12). The trial court granted Reynolds's motion to dismiss the prior strike suspended imposition of sentence, and granted him three years of probation.

Reynolds now appeals. He argues that the order denying his motion to suppress evidence should be reversed. The Attorney General disagrees. Reynolds also argues that the probationary term must be reduced to two years. The Attorney General responds that the matter is now moot because probation has been terminated. In his reply brief, Reynolds agrees.

We conclude that the motion to suppress evidence should have been granted, and we agree with the parties that the probation issue is now moot. Thus, we will reverse and remand for further proceedings.

I. Factual Background

A. Suppression Hearing

On June 6, 2019, at approximately 6:35 p.m., San Jose Police Officer Frank Orabuena was on patrol when he observed a vehicle that "was weaving in and out of traffic going a little faster than all the other vehicles on the road." He observed the vehicle make a right-hand turn, cutting off a truck and almost causing an accident. Orabuena followed the vehicle activated his lights and siren, and proceeded to stop the vehicle for a Vehicle Code infraction. Orabuena's interactions with the vehicle's occupants were captured by his body worn camera and played at the suppression hearing.^[2]

1. Body Worn Camera Video

The video shows Orabuena approach the vehicle, finding three occupants-a driver, a front-seat passenger (Reynolds), and a backseat passenger sitting behind Reynolds. Orabuena asked the driver why he was driving erratically. Reynolds responded that he "needed to pee." Orabuena asked the driver for his driver's license and asked Reynolds and the backseat passenger if they had any identification as well. The driver, later identified as Robert King, indicated he did have a driver's license, reached for it, and handed it to Orabuena. In response to Orabuena's question regarding identification, Reynolds told Orabuena, "Negative. I just went down to the VA to get a new one." The backseat passenger also indicated she had no identification.

Orabuena then walked around the back of the vehicle to the other side of the vehicle to speak with Reynolds through the open front-seat passenger window. As he walked, he requested over his radio that another unit conduct a "roll by" at the traffic stop. Reynolds, who was smoking a cigarette, proceeded to tell Orabuena his name and date of birth. The backseat passenger gave her name as Selena Borras and provided a date of birth. Orabuena then stepped away from the car, stood on the sidewalk, and gave the names and birth dates to the dispatcher over the radio.

During the records check, but before Selena's information had been transmitted, Orabuena yelled, "Stop fucking moving around." Selena responded with a comment that was inaudible on the body camera video. Orabuena responded, "I just saw you hand him that shit." Selena responded, again with a largely inaudible comment, except for the word "cigarette." As she replied, Reynolds held up a lighter with his right hand and said something to Orabuena, which is largely inaudible except for the word "lighter." Orabuena proceeded to convey Selena's name and date of birth to the dispatcher over the radio. About two and a half minutes later, Orabuena asked the dispatcher if there was a female officer available.

Less than a minute later, another officer arrived on the scene. Orabuena then asked the dispatcher, "Can you run on King's probation? And then also, [are] there any descriptors for Roderick?" Orabuena then said, "I said stop moving around Selena. You." Selena responded, "I'm not moving around," and then she made additional inaudible comments. At this point, a third officer had arrived on the scene and was now visible on the video. Orabuena turned to the third officer, and told him, "When I was there, I don't know if he hand[ed] something back or if she hand[ed] something forward. [The] passengers, they were handing something off. And then she keeps going like this."

The third officer asked Orabuena, "Do you want to get them out of the car?" Orabuena responded, "Yeah, now that you guys are here."

After a few moments, Orabuena walked to Selena's backseat door, opened it, and directed her to exit the vehicle. Selena faced the car and Orabuena proceeded to conduct a pat search while asking her if she was armed. Finding nothing, Orabuena directed Selena to sit down on the curb.

At the same time, the third officer instructed someone in the vehicle, "Hey bro, stay off your phone. C'mon man, you know the drill. Stay off your phone."

Orabuena then walked to the driver's door, opened it, and directed the driver to get out. As Orabuena conducted a pat search, he asked the driver, "You have no knives or anything like that?" After completing the search, Orabuena directed the driver to also sit on the curb.

Orabuena then walked to the front-seat passenger door, and directed Reynolds, "Alright Mr. King [sic], step out and face the car, right this way." As Reynolds got out of the car, Orabuena told Reynolds, "Hey, keep your hands where I can see them." Reynolds responded, "Just fixing my pants." Orabuena said, "I'll fix your pants." Reynolds turned around, facing the car with his back to Orabuena, who then proceeded to pat search him. Orabuena told Reynolds, "You can ask and then I'll explain it." After a few more moments and while still conducting the pat search, Orabuena asked, "What's this dude?" Reynolds responded, "What's what?" Orabuena asked again, "What is it?" Reynolds repeated, "What's what?" The second officer then interjected, "Just shoot straight with us and we'll have you out of here."

After that statement, Orabuena took out his handcuffs and proceeded to put them on Reynolds's wrists. Reynolds then said, "Oh shit," and after a few more moments said, "Hey, why am I being handcuffed?" At this point, someone said, "Hey dude," and then someone said, "Get the fuck off," as a struggle ensued. The body camera footage then ended abruptly when the camera became dislodged.

2. Orabuena's Direct Testimony

Orabuena testified that he pulled over King's vehicle for "weaving in and out of traffic" and nearly causing an accident. He made initial contact with the driver, King, who provided identification. The two passengers said they did not have identification and so Orabuena took their names to conduct a records check.

Orabuena testified that at some point during the records check, the name provided by the backseat passenger, Selena Borras, came back as "[n]o match." Orabuena testified that this aroused his suspicion because "people [who] are untruthful about their name . . . usually [are] trying to conceal something" like "probation, parole, warrants, something like that."^[3]

While he was running the records check, Orabuena saw "the rear passenger she was being very fidgety, reaching into her purse, into-underneath her arm area." He "also saw her pass something up to the front passenger." Asked if he could see what was being passed, Orabuena responded he "could not." Asked whether he could identify if it was a weapon, he responded, "I could not at all." However, he stated the fidgeting caused him to be concerned for his safety, because he was "unaware of what they were passing." Based on his training and experience, he stated he knew "people often conceal weapons, drugs. People often will attack a police officer in [an] attempt to flee from a situation where they may be arrested."

Orabuena testified that he directed the backseat passenger, Selena, to exit first because she was "the most fidgety" and "the most uncompliant." After next removing King, the driver, Orabuena stated he asked Reynolds to exit the vehicle. Orabuena testified that Reynolds "was very slow to comply to get out of the vehicle." Orabuena noticed that Reynolds put his hands "to his sides" and "near . . . his back," which made Orabuena suspicious, because he had earlier seen Selena pass something forward. Orabuena explained that people usually "carry most of their weapons" in "the[] waist area" of their body. Orabuena testified that it looked like Reynolds was "[a]ttempting to reach for a weapon," and so after Reynolds exited the vehicle he decided to conduct a pat search "[f]or my safety, my partner's safety, anybody else's safety that was around the area." Orabuena estimated that Reynolds was about 100 pounds heavier than him and two inches taller than him. He also recalled that Reynolds's shorts were "very bagg[y]" and "loose fitting," which meant that Reynolds could more easily conceal weapons.

Orabuena testified that while conducting the pat search, he started with the front waist band, where he felt "a bulge." When asked if he "could . . . feel what that object was," Orabuena responded, "I could not." When asked if he was able to rule out whether it was a weapon Orabuena responded, "Not a hundred percent." Orabuena asked Reynolds what the object was, and Reynolds responded, "[s]omething to the effect of 'what is what,'" which concerned Orabuena because "a lot of times" individuals attempt "to stall or deflect" as they try to "come up with some sort of plan" on what...