Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. BF118001A of Kern County. Stephen P. Gildner and Gary T. Friedman, Judges.
Judge Gildner ruled on the motion to suppress; Judge Friedman imposed sentence.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Kane, J.
OPINION
Following a denial of his motion to suppress evidence, defendant Alden Gene Johnson was convicted by jury trial of possession of cocaine, possession of cocaine base for sale and resisting arrest. On appeal, he contends, among other things, that the trial court erred by denying his motion to suppress evidence. We agree and reverse.
PROCEDURAL SUMMARY
On June 21, 2007, the Kern County District Attorney charged defendant with possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1); possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2); and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1); count 3). The information further alleged that defendant previously had been convicted of two violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Defendant unsuccessfully moved to suppress evidence seized during an allegedly unlawful detention (Pen. Code, § 1538.5).
A jury found defendant guilty as charged, and the trial court found his prior conviction allegations true. The court sentenced defendant to 25 years to life in prison on count 1, stayed pursuant to Penal Code section 654; 25 years to life on count 2; and 180 days in jail on count 3, to be served concurrently.
DISCUSSION
Defendant contends the trial court erred by denying his motion to suppress evidence. He asserts that police officers detained him when they blocked his car with their patrol vehicle, and they had no reasonable suspicion he was engaged in criminal conduct to justify that detention. We find merit in defendant’s contentions.
I. Facts
On February 2, 2007, at about 12:50 a.m., Officers Hernandez and Martinez were patrolling near Owens and Niles in Bakersfield. Defendant’s car caught their attention because, as Hernandez described, it “appeared to be going a little fast for the area,” and “going faster than -- for the area.” The patrol vehicle followed defendant’s car from a distance of approximately two and one-half blocks. The patrol vehicle was going about 25 or 30 miles per hour, and defendant’s car appeared to be “going a little fast” and “pulling away through the neighborhood ahead of [the officers].” When defendant sped up slightly, the officers sped up too. The officers caught up to defendant’s car as it turned into an apartment complex parking lot. The officers followed defendant, entering right behind him. Defendant pulled straight in and parked his car facing a building, blocking two cars in their parking places. The officers parked the patrol vehicle 10 or 15 feet behind defendant’s car, blocking it in the lot. The officers had not activated the patrol vehicle’s overhead lights or siren.
Defendant quickly exited his car and stood by his door. By this time, the officers had turned a spotlight on and directed it at defendant and his car. Defendant “appeared to be lost, as if he didn’t know what he was doing there” or “where he was.” He “looked around like he was kind of lost.” Hernandez thought it was suspicious that defendant had parked in a manner that had blocked other cars, as if he were trying to get away quickly, and that he did not seem to know where he was. Martinez suspected that defendant was attempting to flee from them because of his initial driving speed, his manner of parking, his quick exit from his car, and the appearance that he did not live in the area.
Hernandez quickly approached defendant and asked him if he lived there. Defendant said something to the effect that he had family or friends who lived there. As a safety precaution, Hernandez asked defendant if he had any drugs or weapons on him. Defendant said he did not. Hernandez had not made any physical contact with defendant, made any threats of force against him, or asserted any authority over him by language or tone. Hernandez asked defendant if he could conduct a pat-down search of his person and defendant said, “‘Go ahead.’” Hernandez proceeded with the pat-down search for officer safety, but found nothing unusual, illegal or dangerous. During the pat-down search, Hernandez asked defendant if he was on either probation or parole, and he responded he was on probation for narcotics offenses, but he did not mention whether he was subject to search terms. Hernandez then asked defendant if they could search his car and he said, “‘Yes.’” Hernandez testified that they would typically ask to conduct a vehicle search, particularly of the driver’s area, for officer safety when they were “a little suspicious.” During the ensuing vehicle search, defendant, who was not handcuffed, walked to the patrol vehicle with Hernandez and sat on the front of the patrol vehicle. At about the same time, a records check revealed that defendant was subject to search for narcotics.
During the more thorough probation search that followed, the officers discovered packages of cocaine on defendant’s person and in the patrol vehicle where he had been seated.
After this evidence was presented, defense counsel argued that a detention had occurred. The prosecutor countered that no detention had occurred and the pat-down search was consensual, the vehicle search was consensual, and the police promptly determined defendant’s probation status. If the trial court believed a detention took place, the prosecutor continued, there was reasonable suspicion to support it for three reasons: “first, the vehicle and the manner in which it was driven, the way it speeded up when the police pulled up behind the vehicle; second, the way it pulled into this complex [¶] box[ing in] two other vehicles …, and third, that [defendant] got out and appeared not to know who [sic]he was ….” Defense counsel responded that a detention occurred because a reasonable person would have felt he could not ignore the officers and move on after being pursued by the officers, blocked in by their patrol vehicle, illuminated by their spotlight, and immediately approached by an officer asking probing questions.
The trial court denied the motion to suppress without explanation.
I. Analysis
A. Standard of Review
In reviewing the denial of a motion to suppress evidence, we defer to the trial court’s express or implied findings of fact if they are supported by substantial evidence, but we must independently determine the relevant legal principles and apply those principles to the trial court’s findings of facts to determine whether the search was constitutionally reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Middleton (2005) 131 Cal.App.4th 732, 737-738.) “[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.” (People v. Lawler (1973) 9 Cal.3d 156, 160.) “If factual findings are unclear, the appellate court must infer ‘a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.’ [Citation.] However, if the undisputed facts establish that the search or seizure was constitutionally unreasonable as a matter of law, the reviewing court is not bound by the lower court’s ruling. [Citation.]” (People v. Middleton, supra, at p. 738.)
B. Detention
Defendant argues he was detained when the officers blocked his car in the parking lot and illuminated him with their spotlight. He maintains that these and other circumstances, such as the time of night and the officer’s questions, together created a situation in which a reasonable person would have felt he was not free to decline the officer’s request or otherwise terminate the encounter. Defendant summarizes: “The facts of this case thus meet the legal definition of a ‘seizure’ in two respects. First, [defendant] was physically restrained when the officers blocked his car into the driveway. Second, the officers by words and actions informed [defendant] that he was not free to walk away and terminate the encounter, by shining a spotlight on him, asking him direct and accusatory questions, and conducting a records check.”
The People insist that no detention occurred because defendant parked and exited his car on his own accord, “evinc[ing] his intent to remain in the area notwithstanding any police conduct.” The People’s position, however, is based on a repeated misrepresentation of the evidence presented at the suppression hearing -- that is, the People expressly claim defendant exited his car before the officers parked behind his car and blocked it in, stating, for example: “The evidence presented at the hearing unequivocally showed that [defendant] hastily exited his car and appeared lost before the officers parked behind him.” (Italics added.) In fact, the evidence unequivocally supports the opposite scenario -- defendant got out of his car after the officers parked behind his car and blocked it in. The undisputed testimony: “Q And after you placed your car behind [defendant] with the apartment building in front of him, [he] exited his vehicle, is that correct? [¶] A Yes.” (Italics added.) This factual distinction is critical, as the People seem to appreciate because they base their detention argument on it and distinguish defendant’s authorities with it.
So disturbing are the People’s erroneous factual assertions that we set forth several of them here: “Nothing about this exchange evinces a detention, despite the fact that the officers pulled up behind [defendant]. This is because [defendant] had already haphazardly parked his car, and quickly exited it, which was not the result of police conduct.” (Italics added.) “Indeed, [defendant’s] conduct of haphazardly parking his car and quickly exiting it without any police prompting supports the conclusion that he was not restrained by police. Moreover, [defendant] appeared lost as he exited his car. The officers’ subsequent conduct of parking behind [defendant’s] car, illuminating him and his car, and asking him whether he knew anyone who lived at the apartment complex while approaching him is not a show of authority such that a reasonable person would not feel free to go about his business.” (Italics added.) “That scenario did not happen here. Instead, [defendant] manifested his intent to remain in the parking lot by parking his car, exiting it, and looking around as if he might be lost, all without any police conduct.” (Italics added.) “Like [People v.] Franklin [(1987) 192 Cal.App.3d 935], the officers did not block [defendant’s] way even after parking behind his car because [defendant] had already parked his car, he exited it and was standing next to it, and he appeared to be lost. [Defendant] was not even in his car nor in the process of moving it when the officers parked behind it, such that his egress was blocked.” (Italics added.)
With this factual matter resolved, we turn to the constitutional issue. “The federal Constitution’s Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. (Cal. Const., art. I, § 13.)” (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).) “Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.] … Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821, citing Florida v. Bostick (1991) 501 U.S. 429, 434.)
Thus, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.] If there is no detention -- no seizure within the meaning of the Fourth Amendment -- then no constitutional rights have been infringed.” (Florida v. Royer (1983) 460 U.S. 491, 497-498.)
“A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away. [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza), quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) “Whether a seizure has taken place is to be determined by an objective test, which asks ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’ [Citation.]” (Celis, supra, 33 Cal.4th at p. 673, quoting California v. Hodari D. (1999) 499 U.S. 621, 628.) “[W]hen police engage in conduct that would ‘communicate[] to a reasonable person that he was not at liberty to ignore the police presence and go about his business,’ there has been a seizure. [Citations.]” (Celis, supra, at p. 673, citing Kaupp v. Texas (2003) 538 U.S. 626, 629 & Florida v. Bostick, supra, 501 U.S. at p. 437.) “This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] … The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
It is settled that the driver and occupants of a vehicle are detained when a police officer parks a patrol vehicle behind the other vehicle in such a way that it is prevented from exiting; under these circumstances a reasonable person would believe that he or she is not free to leave. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [detention occurred where officer in marked police car parked diagonally behind defendant’s vehicle so it could not exit parking lot]; see United States v. Burton (7th Cir. 2006) 441 F.3d 509, 510-511 [detention where three bicycle officers surrounded defendant’s car]; United States v. Tuley (8th Cir. 1998) 161 F.3d 513, 515 [detention where patrol car blocked defendant’s truck]; United States v. Packer (7th Cir. 1994) 15 F.3d 654, 657 [detention where patrol vehicles parked in front of and behind defendant’s car with take-down light shining through defendant’s window]; United States v. Lechuga (7th Cir.1991) 925 F.2d 1035, 1039-40 [detention where patrol vehicles parked directly in front of and behind defendant’s vehicle]; United States v. Kerr (9th Cir. 1987) 817 F.2d 1384, 1386-1387 [detention occurred at the moment patrol car blocked one-lane driveway as defendant was backing out]; see People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [no detention where officer left room for defendant’s vehicle to exit and used high beams and spotlights].)
In this case, the officers caught up to defendant’s car, followed him immediately into the parking lot and pulled up behind him, blocking his car from exiting the lot. At that moment, defendant was detained. The officers’ subsequent act of illuminating defendant with a spotlight added to the effect. Contrary to the People’s contention, we see nothing consensual about the encounter. Defendant was not sitting in his car, walking on the street, or standing in a parking lot when he was casually approached by a police officer. He was followed by the police, trapped in a parking lot, lit up by a spotlight, and immediately approached by an officer who inquired about his residence, weapons and drugs, and his probation/parole status. No reasonable person would have felt an unrestrained liberty such that he could ignore the police presence and simply go on his way. We cannot abide the People’s characterization of the encounter as “entirely voluntary.”
Having concluded defendant was detained by the officers when they parked behind his car and blocked his egress, we next address whether that detention was justified by a reasonable suspicion that defendant was engaged in criminal activity.
C. Reasonable Suspicion
The People argue that the officers had reasonable suspicion that defendant was engaged in criminal activity because of his “evasive conduct” that led the officers to believe he was fleeing from them. The People describe the salient evidence of flight as “[defendant’s] observed driving pattern which included his speeding up through a residential area, his act of hastily parking his car in a way that blocked other cars, his quick exit from his car, and appearance of being lost.” The People also contend the officers had an objectively reasonable basis to believe defendant committed a traffic violation by speeding in a residential area because, as Hernandez testified, defendant’s car “appeared to be going a little fast for the area” and “appeared [to be] pulling away through the neighborhood ahead of [the officers],” who were going 25 to 30 miles per hour.
We can find no evidence that the area was residential, as the People assume, other than the presence of an apartment complex.
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Souza, supra, 9 Cal.4th at p. 231.) The reasonable suspicion that justifies a detention is “simply ... ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” (Ornelas v. United States (1996) 517 U.S. 690, 696; Celis, supra, 33 Cal.4th at p. 674 [some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity].) However, “an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith. [Citation.]” (People v. Conway (1994) 25 Cal.App.4th 385, 389.) “Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ [Citations.]” (Celis, supra, at p. 674.)
“As with all warrantless intrusions, the burden lies with the state to justify a detention. To legally detain an individual because of ‘suspicious circumstances, the prosecution must establish on the record that at the moment of the detention, there were specific and articulable facts, which reasonably caused the officer to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity. [Citation.]” (People v. Bower (1979) 24 Cal.3d 638, 644; People v. Williams (1999) 20 Cal.4th 119, 130 [prosecution bears burden of proving that warrantless search or seizure was reasonable under the circumstances].)
Thus, the prosecution was required to show that the officers possessed a reasonable suspicion, based on the totality of the circumstances existing when they pulled in behind defendant’s car, that defendant was (or had been or was about to be) engaged in criminal activity.
1. Speeding
Hernandez testified defendant “appeared to be going a little fast for the area.” This bare conclusion did not amount to a reasonable suspicion that defendant was speeding because it was not supported by specific and objective facts establishing defendant’s speed, that his speed was in excess of the posted speed limit (Veh. Code, § 22351), or that his speed was unsafe or unreasonable due to any particular driving condition (Veh. Code, § 22350 [basic speed law]; People v. Behjat (2000) 101 Cal.Rptr.2d 193, 84 Cal.App.4th Supp. 1). Hernandez also testified that defendant “appeared [to be] pulling away through the neighborhood ahead of [the officers],” who were going 25 to 30 miles per hour. This evidence supported a finding that the officers reasonably suspected defendant was driving faster than 25 to 30 miles per hour at some point, but again there was no evidence that this speed exceeded the posted limit or that it was unsafe or unreasonable due to any particular driving condition. Neither officer testified to these conspicuously missing facts and the prosecutor never inquired about them. We conclude there was no substantial evidence to support an implied factual finding that the officers had a reasonable suspicion defendant was violating the Vehicle Code by speeding.
2. Flight
Hernandez testified defendant sped up as the officers followed him. Hernandez thought it was suspicious that defendant parked in a manner that blocked other cars, as if he were trying to get away quickly, and that he did not seem to know where he was. Martinez testified she suspected that defendant was attempting to flee from them because of his initial driving speed, his manner of parking, his quick exit from his car, and the appearance that he did not live in the area. As we have mentioned, some of these circumstances had not yet occurred when the detention took place.
“[F]light from police is a proper consideration -- and indeed can be a key factor -- in determining whether in a particular case the police have sufficient cause to detain.” (Souza, supra, 9 Cal.4th at p. 235; Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow).) Generally, “obvious attempts to evade officers can support a reasonable suspicion.” (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884-885.) Although a person may decline to speak to police officers and “go about his business” without providing grounds for a detention, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Wardlow, supra, at pp. 124-125.) But “[n]o single fact -- for instance, flight from approaching police -- can be indicative in all detention cases of involvement in criminal conduct.” (Souza, supra, at p. 239; see Wardlow, supra, at p. 124 [person’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime].) “Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity.” (Souza, supra, at p. 239.) In other words, circumstances and context may give meaning to flight, reasonably leading an officer to suspect the defendant is fleeing because of a consciousness of guilt rather than an innocent desire to avoid police contact. (Id. at pp. 234-235.)
In Wardlow, officers were driving in a caravan of vehicles through an area known for heavy narcotics trafficking when they saw the defendant standing near a building holding an opaque bag. (Wardlow, supra, 528 U.S. at pp. 121-122.) Upon seeing the officers, the defendant fled. (Ibid.) The court held that the defendant’s “unprovoked flight,” triggered by his observation of the police caravan, justified the officers’ decision to detain him. (Id. at pp. 124-125 [headlong flight is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such].)
Similarly, the California Supreme Court concluded in Souza that the manner in which a person avoids police contact can be considered by officers and courts assessing the propriety of a detention. (Souza, supra, 9 Cal.4th at p. 234.) There, an officer on night patrol in a high-crime area encountered the defendant speaking to the occupants of a parked car. (Id. at p. 240.) As the officer approached, the defendant fled and the car’s occupants ducked down. (Ibid.) In finding the officer had reasonable suspicion to detain and frisk the defendant, the court explained: “Any temporary detention includes factors that, considered together, may suggest either criminal or innocent behavior to trained police officers.” (Id. at p. 239.)
Evasive conduct other than unprovoked flight can support a reasonable suspicion of criminal activity. In In re Stephen L. (1984) 162 Cal.App.3d 257, two officers in a gang-dominated area entered a park known for violent crime, and saw six gang members standing in a group near fresh graffiti that was no more than one or two days old. (Id. at pp. 259-260.) Upon noticing the officers, the gang members split into two groups, each of which began to leave the park in a different direction. The court held that under the circumstances, the officers were justified in detaining the gang members and patting them down for weapons in investigating the graffiti vandalism. (Id. at pp. 260-261.)
In People v. Loewen (1983) 35 Cal.3d 117, flight did not support reasonable suspicion. There, the defendant, who was driving a pickup truck, accelerated when he saw an officer conduct a vehicle stop of a possible associate on the roadside. The officer observed “that the truck ‘appeared to be going away from [him] faster than it came towards [him].’ He was unable to offer an estimate of any increase in speed, but acknowledged that the truck approached at a rate of 25 to 30 miles per hour, the speed at which most people travel that road.” (Id. at p. 127.) The Supreme Court noted that an “‘individual, unless he or she is properly detained and so notified, is as free to avoid [an] officer as to avoid any other person.’ [Citation.] ‘[A]n outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable.... If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless; it would exist only to the extent it was not exercised.’ [Citations.]” (Id. at p. 128.) “The occupants of the truck were under no duty to stop. They could legally decide to affirmatively avoid the officer out of a desire to remain uninvolved in [the officer’s] activities. [¶] Further, neither of the occupants of the truck engaged in ‘furtive’ behavior. As [the officer] testified, neither man turned around and looked back in the officer’s direction as the truck continued down the road. The pickup did not swerve or drive in a reckless manner at any point. In sum, since the pickup was not driven erratically, and neither occupant’s gestures were otherwise objectively suspicious, the fact that the pickup continued on, even at an accelerated pace, was not reasonably indicative of criminal behavior.” (Ibid., fn. omitted.; see id. at p. 127 [no evidence defendant ducked, hid face, or made any other suspicious movements; no evidence that anything was being concealed, disposed of, exchanged, carried].) The court concluded that the officer’s suspicion that the truck’s occupants had engaged in or were about to engage in criminal activity was not reasonable. (Id. at p. 129.)
The Loewen court distinguished In re Eduardo G. (1980) 108 Cal.App.3d 745 as follows: “In that case, officers on patrol entered an alleyway at 3 a.m. and observed a minor driving a car at about five miles per hour. The officers turned their car around and followed the car out of the alley. The car then accelerated out of the alley at 25 to 30 miles per hour, made two ‘quick turns’ and ‘abruptly stopped at a curb and extinguished the automobile headlights.’ [Citation.] The Court of Appeal found that the accused’s ‘presence in an alley and the behavior of taking extraordinary precautions to avoid the following police vehicle, coupled with the fact that the appellant driver appeared to be a minor, ... constitute[d] minimum but adequate recognizable and articulable factors to support a temporary stop for investigation.’ [Citation.] Obviously, this case [Loewen] -- which involves the appearance of a pickup truck on a local highway, moving at a lawful rate of speed, together with the absence of any objective signs that either occupant was attempting to avoid the officer -- is a far cry from Eduardo G.” (People v. Loewen, supra, 35 Cal.3d at p. 128, fn. 6.)
Here, there was no evidence of a headlong flight, just as there was no evidence of speeding. Defendant accelerated but was moving at an apparently lawful rate of speed and was not driving erratically. He did turn into a parking lot and stop his car, but this behavior does not, in our opinion, amount to an extraordinary effort to evade the following patrol vehicle. Most citizens would rather not be followed by the police and might accelerate without speeding, or turn off course to terminate the experience and perhaps to determine whether it was a purposeful pursuit or not. Defendant also stopped his car in an unusual manner as the officers followed him into the lot. This suggested he did not live in the apartment complex because, if he had, he would have parked in a regular parking space. It also suggested he was well aware that the officers were following him and, when they continued the pursuit into the parking lot, he believed contact was inevitable and he might as well stop his car. We do not find this behavior objectively unusual or suggestive of criminal behavior. A citizen who is unquestionably being followed by the police, and whose attempt to terminate the experience has only confirmed the pursuit, might reasonably stop and question or submit to the police presence. Indeed, prolonging an obvious and unprovoked pursuit could be considered unreasonable. (See Wardlow, supra, 528 U.S. at p. 125 [the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior].)
Furthermore, there was no evidence of suspicious conduct or furtive behavior, suggesting, for example, drug use or drug dealing, and no evidence that the area was a high-crime area. Defendant could have been minding his own business and driving through the finest area of Bakersfield at 1:00 a.m. Although “[t]he possibility of an innocent explanation does not deprive [an] officer of the capacity to entertain a reasonable suspicion of criminal conduct” (In re Tony C. (1978) 21 Cal.3d 888, 894), here there was simply inadequate evidence to support the suspicion of a criminal explanation. The totality of the circumstances did not reasonably suggest crime, and nothing defendant did was “so unusual, so far removed from everyday experience that it crie[d] out for investigation” (People v. Foranyic (1998) 64 Cal.App.4th 186, 190 [such activity justifies detention even if not apparently related to crime; diligent officer expected to investigate bicyclist carrying ax at 3:00 a.m.]). The fact that defendant possessed drugs, of course, changes nothing constitutionally. There was no substantial evidence that when the officers detained him, they had a reasonable suspicion he was engaged in criminal conduct based on the fact that he accelerated, turned into the parking lot and, as the officers closely followed him, stopped his car without parking it in a stall.
In sum, on this record, we must conclude the prosecution failed to provide sufficient evidence that the detention was justified by reasonable suspicion. Because the detention was illegal, defendant’s consent to the subsequent searches was ineffective. (Florida v. Royer, supra, 460 U.S. at pp. 507-508 [consent tainted by illegality of detention ineffective to justify search].) The trial court should have granted the motion to suppress.
DISPOSITION
The judgment of conviction is reversed. The matter is remanded and the trial court is directed to set aside its order denying the motion to suppress evidence and to enter a new order granting the motion.
WE CONCUR: Vartabedian, Acting P.J., Levy, J.
These misrepresentations might lead one to believe the officers just happened by and found defendant standing outside his car in a parking lot, looking around as if he were lost.