In re Jose S.

Filed 11/10/05 In re Jose S. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re JOSE S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE S.,
Defendant and Appellant.
G034984
(Super. Ct. No. DL018504)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Richard
Behn, Judge. Reversed.
Gregory Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Chris Beesley, Deputy
Attorney General for Plaintiff and Respondent.
* * *

-- 1 of 12 --

2
Defendant Jose S., appeals from a final judgment declaring him a ward of
the court, which was entered after he admitted to possessing methamphetamine and
marijuana. Before Jose admitted the allegations, the court denied his motion to suppress
the drugs. Jose contends the court wrongly denied his motion because the police found
the drugs during an illegal stop of the car in which Jose was a passenger. We conclude
the traffic stop was an illegal detention, because no articulable facts reasonably suggested
the driver violated the Vehicle Code or any other law. We further conclude the illegal
traffic stop was not justified by the fact Jose happened to be a juvenile on probation.
Thus, the drugs should have been suppressed. We reverse.
FACTS
Two Orange Police Department officers patrolling a shopping mall parking
lot at 11:30 p.m., on a Saturday night, saw a blue Honda Civic make a right turn into the
parking lot without signaling. The car then turned right again without signaling. The
officers turned on their cruiser’s emergency lights, and the car pulled over quickly.
Officer John Mancini walked to the driver’s window, while Officer Gary Nelson walked
to the passenger’s window. They may have had their weapons drawn as they approached
the car. Officer Nelson stood close enough to the passenger’s door that Jose would not
have been able to open it without hitting the officer.
Officer Mancini questioned the driver. He asked whether anything illegal
was in the car; the driver answered, No. He then asked the driver for permission to
search the car, and the driver consented. He next asked the driver to get out of the car,
and obtained permission to search him, but found nothing illegal.
Jose was fidgeting, sweating, and acting nervous. About 30 seconds after
the driver was searched, Officer Mancini asked Jose to step out of the car. As Jose got
out, Officer Nelson placed his hand on Jose’s arm, and handcuffed him. He escorted Jose

-- 2 of 12 --

3
back between the Civic and the police cruiser. Officer Nelson patted down Jose’s
clothing, finding nothing suspicious. Next, Officer Mancini asked Jose whether anything
illegal was in the car, and Jose told him there was speed in the center console. Officer
Mancini searched the car, finding methamphetamine, marijuana, and a glass pipe stashed
in the center console. Jose admitted the drugs belonged to him. The officers placed Jose
in the back of their cruiser, read him his Miranda rights, and drove him to the mall’s
police substation. They let the driver leave without citing him for any traffic violation.
The District Attorney filed a petition to declare Jose a ward of the court
pursuant to Welfare and Institutions Code section 602, charging him with one count each
of possessing a controlled substance (methamphetamine), possessing 28.5 grams or less
of marijuana, and possessing drug paraphernalia. (Health & Saf. Code, §§ 11377, subd.
(a), 11357, subd. (b), & 11364). Jose had already been declared a ward of the court five
months earlier, and was still on probation. His probation conditions included submitting
his “person, residence and property to search and seizure by any peace/probation
officer/school official any time of day or night, with or without a warrant, probable cause
or reasonable suspicion.”
Jose moved to suppress the drugs and his statements to the officers. He
contended no probable cause existed to stop the car, because no evidence suggested the
driver’s failure to signal affected traffic. (Veh. Code, § 22107 [requiring drivers to signal
before turning “in the event any other vehicle may be affected by the movement”].) He
further contended he had been subjected to an unreasonably prolonged detention, or an
arrest made without probable cause. The District Attorney responded no probable cause
or reasonable suspicion was needed to stop the car because he was a juvenile on
probation, relying upon In re Tyrell J. (1994) 8 Cal.4th 68 (Tyrell J.). The District
Attorney also contended Jose was reasonably detained, and not arrested.
The court denied Jose’s motion to suppress. It stated, “The court agrees
with the defense counsel that there probably was no probable cause. However, the court

-- 3 of 12 --

4
believes that it’s bound by Tyrell. And while [defense] counsel’s argument was that there
are a number of courts that are disagreeing with Tyrell, it’s still the law of the state of
California and the court is still bound by it.” (Italics added.) Jose then admitted the
charges in the petition. The court continued wardship on the condition Jose serve 35 days
in custody and enter a drug treatment program.
DISCUSSION
“The rules for review of denial of a motion to suppress are well established.
This court reviews the explicit and implicit factual findings to determine if they are
supported by substantial evidence. [Citation.] We then exercise our independent
judgment to determine if the facts found by the trial court establish a seizure in violation
of the Fourth Amendment.” (People v. Hester (2004) 119 Cal.App.4th 376, 385
(Hester).)
The Traffic Stop Was an Unreasonable Detention; the Drugs Must Be Suppressed
Our focus here is on the initial traffic stop of the car in which Jose was
riding. “Temporary detention of individuals during the stop of an automobile by the
police constitutes a detention under the Fourth Amendment.” (Hester, supra, 119
Cal.App.4th at p. 386.) “‘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.’” (Ibid.) Thus, a traffic stop survives
Fourth Amendment scrutiny “only if the facts and circumstances known to the officer
support at least a reasonable suspicion that the driver has violated the Vehicle Code or
some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926 (Miranda).)

-- 4 of 12 --

5
Before we determine whether the traffic stop constituted an unreasonable
detention, we must determine whether Jose may challenge the legality of the traffic stop.
A split of authority exists as to whether a passenger is seized by a traffic stop at all.
(Compare People v. Cartwright (1999) 72 Cal.App.4th 1362, 1368 (Cartwright) [“A
typical traffic stop . . . does not by itself implicate the Fourth Amendment rights of a
passenger in the stopped vehicle”] with People v. Bell (1996) 43 Cal.App.4th 754, 765
(Bell) [“We believe the better and clearer approach is to recognize that . . . the typical
traffic stop does result in the detention of any passenger in the vehicle”].)
This split of authority exists even within our own division. Five years after
Cartwright, was decided another panel of our division came to the opposite conclusion in
People v. Lamont (2004) 125 Cal.App.4th 404, review granted March 30, 2005, S131308
(Lamont): “at the time of the initial traffic stop, the passenger is seized within the
meaning of the Fourth Amendment. Consequently, the passenger can challenge the
legality of the traffic stop because the passenger is asserting his or her own legal right to
be free from an unlawful seizure.” (Id. at p. 411.)
The California Supreme Court granted review of Lamont and deferred
briefing pending its disposition of two other appeals also raising the issue of whether a
passenger is seized by a traffic stop. (See People v. Brendlin (2004) 115 Cal.App.4th
206, review granted Apr. 14, 2004, S122133; see also People v. Saunders review granted
Apr. 14, 2004, S122744 [nonpub. opn.].) These appeals were fully briefed as of October
2004, but oral argument has not been scheduled yet. In light of the Supreme Court’s
grants of review, these Court of Appeal opinions have no value as precedent. (Cal. Rules
of Court, rules 976(d) & 977(a).)
Nonetheless, in the absence of any contrary binding authority, we re-adopt
our recent conclusion that passengers are detained by traffic stops and may challenge the
legality of those stops. (See Bell, supra, 43 Cal.App.4th at p. 765; accord U.S. v. Twilley
(9th Cir. 2000) 222 F.3d 1092, 1095 [“‘a passenger may challenge a stop of a vehicle on

-- 5 of 12 --

6
Fourth Amendment grounds even if she has no possessory or ownership interest in the
vehicle”]; see also 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Illegally
Obtained Evidence, § 262, p. 918 [noting that Bell “adopt[ed] the majority view that a
traffic stop results in the detention of a passenger as well as a driver”].) Thus, Jose may
contend the traffic stop was an unreasonable detention that violated his Fourth
Amendment rights, even though he was only a passenger in the car.
We next determine whether the traffic stop unreasonably detained Jose.
The court impliedly so found, stating, “I agree with the defense counsel that there
probably was no probable cause” for the stop. The Attorney General so concedes, by
failing to argue the officers had probable cause or reasonable suspicion to stop the car.
And we so conclude. The officers testified the only reason they pulled over the car in
which Jose was riding was because the driver failed to signal before turning, but the
applicable Vehicle Code section requires signaling only “in the event any other vehicle
may be affected by the movement.” (Veh. Code, § 22107; accord Cartwright, supra, 72
Cal.App.4th at p. 1366, fn. 6 [“The failure to signal a lane change does not always violate
the Vehicle Code” because a “signal [is] required only when another vehicle may be
affected by the movement”].)
No evidence showed the car’s two unsignaled right turns affected any other
vehicle. Neither officer testified any other cars were in or near the parking lot when the
car turned. Nor did their testimony establish the car’s turns affected their own police
cruiser, as neither officer testified about the relative locations of the car and the cruiser,
or whether the cruiser was even in traffic. (See U.S. v. Mariscal (9th Cir. 2002) 285 F.3d
1127, 1131 [officer lacked reasonable suspicion to stop car for violating Arizona statute
requiring turn signal “‘in the event any other traffic may be affected by the movement,’”
where “there was not a shard of evidence that any vehicle other than the [turning car]
itself was affected by the right turn”]; cf. Miranda, supra, 17 Cal.App.4th at p. 930
[unsignaled turn affected the police car, at least].) Indeed, the officers did not cite the

-- 6 of 12 --

7
driver for failing to signal. Thus, the officers lacked a reasonable suspicion the driver
violated Vehicle Code section 22107 or any other law, rendering the traffic stop an
unreasonable detention. (See Miranda, supra, 17 Cal.App.4th at p. 926; see also Hester,
supra, 119 Cal.App.4th at p. 386.) Accordingly, the drugs seized and statements made as
a result of that stop must be suppressed under the “fruit of the poisonous tree” doctrine.
(See Wong Sun v. United States (1963) 371 U.S. 471, 484-488; People v. Medina (2003)
110 Cal.App.4th 171, 178-179.)
Jose’s Probation Search Condition Does Not Justify the Illegal Traffic Stop
The Attorney General contends the traffic stop’s legality is irrelevant
because Jose was a juvenile on probation and subject to a search condition when the car
was stopped. In Tyrell J., our Supreme Court held a juvenile probationer lacks any
reasonable expectation of privacy that society is willing to recognize as legitimate, and so
may be searched by a police officer even if the officer has no idea the juvenile is on
probation. (Tyrell J., supra, 8 Cal.4th at p. 86.) The court presumed the minor was
aware of the search condition, and had not been “led to believe that only police officers
who were aware of the condition would validly execute it. The minor certainly could not
reasonably have believed [the officer] would not search him, for he did not know whether
[that officer] was aware of the search condition.” (Ibid.)
Our Supreme Court later appeared to retreat from Tyrell J. In People v.
Robles (2000) 23 Cal.4th 789 (Robles), the court held a warrantless search could not be
justified by the unknown search condition of a probationer who shared the searched
premises with the defendant. (Id. at pp. 797-800.) The court observed, “The logic of
Tyrell J. cannot be stretched to vitiate the illegality of the police action here. Even
though a person subject to a search condition has a severely diminished expectation of
privacy over his or her person and property, there is no doubt that those who reside with

-- 7 of 12 --

8
such a person enjoy measurably greater privacy expectations in the eyes of society.”
(Id. at p. 798.)
The Supreme Court furthered its apparent retreat from Tyrell J. in People v.
Sanders (2003) 31 Cal.4th 318 (Sanders). There, the court expanded its holding in
Robles, concluding a warrantless search of premises shared by a parolee with a search
condition and a roommate, violated both persons’ Fourth Amendment rights because the
police did not know about the condition before the search. (Id. at pp. 331-332.) It noted
that “whether a parolee has a reasonable expectation of privacy is inextricably linked to
whether the search was reasonable” (id. at p. 333), and that “whether a search is
reasonable must be determined based upon the circumstances known to the officer when
the search is conducted. (Id. at p. 334, italics added.) Thus, “if the officer is unaware
that the suspect is on parole and subject to a search condition. . . . a search cannot be
justified as a parole search, because the officer is not acting pursuant to the conditions of
parole.” (Id. at p. 333.) Similarly, the court opined, “if an officer is unaware that a
suspect is on probation and subject to a search condition, the search is not justified by the
state’s interest in supervising probationers or by the concern that probationers are more
likely to commit criminal acts.” (Ibid.)
The Sanders court isolated Tyrell J. from other Fourth Amendment
jurisprudence. It noted that Tyrell J. conflicted with preceding cases including In re
Martinez (1970) 1 Cal.3d 641 (holding a defendant’s unknown parole status did not
justify a warrantless search as a parole search), and has been limited by subsequent cases
including Robles. (Sanders, supra, 31 Cal.4th at pp. 322, 329, 332.) It also reported that
“[o]ur holding in Tyrell J. . . . received a chilly reception” from commentators, who
questioned Tyrell J.’s “‘bizarre reasoning,’” lamented that it “‘misapplied United States
Supreme Court precedent’” and finally deemed it “‘unsettling’” and “‘insupportable in
fact and law.’” (Sanders, supra, 31 Cal.4th. at pp. 328-329.) But because the searched
persons in Sanders were adults, not juveniles, the court had no reason to expressly

-- 8 of 12 --

9
overrule Tyrell J. (Sanders, supra, 31 Cal.4th at p. 335, fn. 5.) In Justice Kennard’s
concurring opinion, however, she stated, “I would draw no distinction between the
warrantless search of an adult parolee and the warrantless search of a juvenile
probationer. As to each, I would apply the same analysis: Neither search can later be
justified by information such as the search condition in this case that was unknown to the
searching officer.” (Sanders, supra, 31 Cal.4th at pp. 337-338 (conc. opn. of Kennard,
J.).)
Indeed, one appellate district recently concluded that Tyrell J. is no longer
good law. (In re Joshua J. (2005) 129 Cal.App.4th 359, review den. Aug. 17, 2005
(Joshua J.).) Instead, the Joshua J. court applied Sanders to the search of a juvenile
probationer, holding the search was not justified by a search condition of which the
officer was unaware. (Joshua J., supra, 129 Cal.App.4th at p. 365.) It rejected the
Attorney General’s argument that it was bound by Tyrell J., explaining: “In order for
Tyrell J. to have binding effect, one would have to conclude that the California Supreme
Court presently subscribes to the notion that, based on the special needs of juveniles
under the doctrine of parens patriae, juvenile probationers are afforded less protection by
the Fourth Amendment than adult probationers and parolees. However, the majority in
[Sanders] noted this particular issue was left undecided in Sanders . . . . [¶] Because the
high court itself dismantled the foundation and cornerstones of Tyrell J. [in Sanders], we
reject respondent’s argument that we are bound to follow Tyrell J.” (Joshua J., supra,
129 Cal.App.4th at pp. 363-364.) Although the Supreme Court denied review of
Joshua J., only two weeks later it granted review in In re Jaime P., a case factually
similar to the instant case, but in which the Court of Appeal had concluded it was bound
by Tyrell J. (In re Jaime P., review granted Aug. 31, 2005, S135263 [nonpub. opn.]
(Jaime P.).)
With the Supreme Court denying review in Joshua J., and granting review
in Jaime P., a fortune teller would feel confident in predicting the court will overrule

-- 9 of 12 --

10
Tyrell J. But we believe it is unnecessary to add our voice to the fray over the continued
force of Tyrell J., or to predict its demise, because it is distinguishable. In Tyrell J., the
juvenile was attending a high school football game. (Tyrell J., supra, 8 Cal.4th at p. 74.)
He and two friends approached a group of three officers patrolling the stadium, one of
whom recognized the juveniles and identified them as gang members. (Ibid.) One of the
juvenile’s friends was wearing a heavy, quilted coat, although the temperature was over
80 degrees. When an officer pulled away the heavy coat, a large hunting knife was
revealed. When the officers directed the trio to a nearby fence to conduct a pat-search,
the juvenile suspiciously adjusted his trousers in the crotch area. (Ibid.) As Justice
Kennard noted in her dissent, “the searching officer unquestionably had a reasonable
suspicion that the minor had violated the law: the officer had just discovered that the
minor’s friend was carrying a concealed weapon, and the minor’s gestures suggested that
he, too, might be concealing a weapon on his person.” (Id. at p. 98 (dis. opn. of
Kennard, J.) Thus, the officer in Tyrell J. did no more than search the juvenile consistent
with the terms of his probation conditions, although the officer was unaware of those
conditions. In contrast, the officers in this case pulled over a car without reasonable
suspicion of wrongdoing — an unreasonable detention not authorized by Jose’s probation
conditions.
On similar facts, the court in Hester held Tyrell J., cannot justify an
otherwise unreasonable traffic stop of a car occupied by a juvenile probationer. (Hester,
supra, 119 Cal.App.4th at pp. 398, 404-405.) The court determined “Tyrell J., is
distinguishable” because “[w]e are not concerned with whether a probation waiver can
justify a search; the issue in this case is whether the stop of a lawfully operated vehicle
can be justified because a passenger in the vehicle was on probation when the officers
stopping the vehicle had no knowledge of the probation/parole status of any occupant in
the vehicle.” (Hester, supra, 119 Cal.App.4th at p. 398.) The court further distinguished
Tyrell J., noting that “[u]nlike Tyrell J., this case did not involve the stop of a juvenile in

-- 10 of 12 --

11
a public place. Instead, it involved the detention of a lawfully operated vehicle in
which . . . [a] juvenile [was] riding. . . . The officers did not know if any of the occupants
of the [car] were juveniles.” (Hester, supra, 119 Cal.App.4th at p. 405.)
Having distinguished Tyrell J., the Hester court concluded, “[w]e can
envision no conduct more unreasonable than stopping a vehicle and then hoping the stop
later can be justified if one of the occupants in the vehicle happens to be on probation or
parole.” (Hester, supra, 119 Cal.App.4th at p. 398.) We agree. A juvenile’s search
condition cannot give free license for police officers to stop a car in which the juvenile is
riding without reasonable suspicion of a traffic violation or other criminal wrongdoing
when the officers have no idea that the juvenile is on probation, or even that the juvenile
is, in fact, a juvenile.
DISPOSITION
The judgment is reversed and the cause remanded to the juvenile court with
directions to vacate the order denying the motion to suppress and to enter a new order
granting the motion. Within 30 days after the remittitur is issued, Jose may move to
vacate his admission of the allegations of the petition, and, if he does so, the juvenile

-- 11 of 12 --

12
court is directed to grant the motion, reinstate the petition and proceed
accordingly. If
Jose does not move to vacate his admission, the court is directed to reinstate the original
judgment.
IKOLA, J.
WE CONCUR:
O’LEARY, ACTING P. J.
MOORE, J.

-- 12 of 12 --