IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Appellant,

v.

LEON WILLIAM TACARDON,

Defendant and Respondent.

S264219

Third Appellate District

C087681

San Joaquin County Superior Court

STK-CR-FER-2018-0003729

December 29, 2022

Justice Corrigan authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Kruger, Jenkins, 

and Guerrero concurred. 

Justice Groban filed a concurring and dissenting opinion.

Justice Liu filed a dissenting opinion.
1

PEOPLE v. TACARDON

S264219

Opinion of the Court by Corrigan, J.

A sheriff’s deputy patrolling after dark saw three people 

sitting in a legally parked car in a residential neighborhood, 

smoking something. He pulled up behind the car, illuminated it 

with a spotlight, and approached on foot. We granted review to 

examine the significance of the deputy’s use of a spotlight in this 

circumstance. We conclude that shining a spotlight for 

illumination does not ipso facto constitute a detention under the 

Fourth Amendment. Rather, the proper inquiry requires 

consideration of the totality of the circumstances, including the 

use of a spotlight.

I. BACKGROUND

Sheriff’s Deputy Joel Grubb testified to the following facts 

at the preliminary hearing, where defendant Leon William 

Tacardon first moved to suppress evidence.

On a March evening, around 8:45 p.m., in a residential 

Stockton neighborhood, Grubb was on patrol in a marked car. 

The area was known for narcotics sales and weapons possession. 

While patrolling, Grubb had both his headlights and high beams 

on for “extra visibility.” He drove past a BMW legally parked in 

front of a residence, in the vicinity of a streetlight. The car’s 

engine and headlights were off; smoke emanated from slightly 

open windows. He saw three people inside and made eye contact 

with the occupants as he drove past them. Grubb made a Uturn, parked about 15 to 20 feet behind the BMW, and turned 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

2

on his spotlight. He did not activate his siren or emergency 

lights or issue any commands to the car’s occupants. He sat in 

his patrol car for 15 to 20 seconds while he informed dispatch of 

his location. He then approached the BMW at a walking pace. 

He did not draw a weapon. 

As the deputy approached, a woman sitting in the 

backseat “jumped out” of the BMW, closing the door behind her. 

The deputy testified that “[i]t was very quick and kind of abrupt 

the way that she opened the door and quickly stepped out. I felt 

it was unusual.” She walked towards the back of the BMW, and 

Grubb asked her what she was doing. She responded, “I live 

here.” Concerned for his safety, the deputy directed the woman 

to stand near the sidewalk behind the BMW where he could see 

her. He spoke in a calm and moderate voice and did not draw a 

weapon. The woman complied. 

Grubb continued to walk toward the car. As he came 

within a few feet of the BMW, he smelled marijuana smoke 

coming from inside. The car’s rear windows were tinted. Even 

with the spotlight on, Grubb had to use a flashlight to illuminate 

the car’s interior. He could see one large and two smaller clear 

plastic bags on the rear passenger floorboard. They contained a 

green leafy substance. 

Tacardon sat in the driver’s seat. Upon request, both he 

and the front seat passenger identified themselves. Only the 

passenger produced identification. After Grubb saw a partially 

burned, hand-rolled cigarette in the center console, he asked 

Tacardon about that item and the leafy substance in the bags. 

Asked whether he was on probation or parole, Tacardon said he 

was on probation. The discussion lasted two to three minutes. 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

3

Telling Tacardon to remain seated, Grubb returned to his 

patrol car. A records search confirmed that Tacardon was on 

probation with a search condition. After additional officers 

arrived, the deputy placed Tacardon in the back of the patrol car 

and searched the BMW. He seized the three plastic bags in the 

backseat and a vial containing 76 pills. A search incident to 

arrest revealed that Tacardon carried $1,904 in cash. 

Laboratory analysis confirmed that the bags contained 696 

grams of marijuana, and the pills were hydrocodone. The 

amount of drugs, their presence in a car, and the accompanying 

cash were factors consistent with possession for sale. 

Tacardon was charged with possession for sale of 

hydrocodone and marijuana. (Health & Saf. Code, §§ 11351, 

11359, subd. (b).) At the preliminary hearing, the magistrate 

denied Tacardon’s motion to suppress the evidence (Pen. Code, 

§ 1538.5) and held him to answer. The magistrate reasoned: “it 

was a police contact . . . . [I]n other words, he didn’t stop the 

defendant. There certainly was a point at which the defendant 

wasn’t free to go but that still would not preclude it being 

characterized as a contact.” The deputy’s observation of a large 

quantity of what appeared to be marijuana in plain view in the 

back of the car justified further investigation. 

Tacardon renewed his motion to suppress in conjunction 

with a motion to dismiss the information. (Pen. Code, §§ 995, 

subd. (a)(2)(B), 1538.5, subds. (i), (m); People v. Lilienthal (1978) 

22 Cal.3d 891, 896–897; People v. McDonald (2006) 137 

Cal.App.4th 521, 528–529.) Based on the preliminary hearing 

record, the superior court granted the motion and dismissed the 

charges. The court held that Deputy Grubb engaged in a 

consensual encounter when he initially pulled behind 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

4

Tacardon’s car and turned on his spotlight. But his detention of 

the female passenger effectuated a detention of Tacardon. 

The Court of Appeal reversed. It agreed with the superior 

court that Grubb’s position behind Tacardon’s car, spotlight 

illumination, and approach on foot did not “manifest a sufficient 

show of police authority to constitute a detention.” (People v. 

Tacardon (2020) 53 Cal.App.5th 89, 99 (Tacardon).) The court 

noted that the deputy did not block defendant’s car, use his 

emergency lights, or immediately and aggressively question 

Tacardon. (Id. at pp. 98–99.) It concluded: “Simply put, 

although a person whose vehicle is illuminated by police 

spotlights at night may well feel he or she is ‘the object of official 

scrutiny, such directed scrutiny does not amount to a 

detention.’ ” (Id. at pp. 99–100, quoting People v. Perez (1989) 

211 Cal.App.3d 1492, 1496 (Perez).) However, it rejected the 

superior court’s conclusion that Grubb’s interaction with the 

female passenger transformed the encounter with Tacardon into 

a detention. It reasoned that there was “no evidence [Tacardon] 

observed the deputy’s interaction with [the passenger], or that 

the deputy conveyed to defendant that he, like [his passenger], 

was required to remain.” (Tacardon, at p. 100.) 

In analyzing the deputy’s initial approach, the Court of 

Appeal expressly disagreed with People v. Kidd (2019) 36 

Cal.App.5th 12 (Kidd), which found an unlawful detention on 

similar facts. In Kidd, a patrolling officer saw two men parked 

on a residential street with the car’s fog lights on at 1:30 in the 

morning. (Id. at p. 15.) He drove past the car, made a U-turn, 

and parked 10 feet behind the vehicle. The officer shined two 

spotlights on the parked car and approached on foot. (Id. at p. 

16.) The appellate court found that Kidd, who was in the 

driver’s seat, was detained when the officer pulled up behind the 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

5

parked car and turned on the patrol car’s spotlights. (Id. at pp. 

21–22.) The court observed: “motorists are trained to yield 

immediately when a law enforcement vehicle pulls in behind 

them and turns on its lights. Regardless of the color of the lights 

the officer turned on, a reasonable person in Kidd’s

circumstances ‘would expect that if he drove off, the officer 

would respond by following with red light on and siren 

sounding . . . .’ ” (Id. at p. 21, quoting People v. Bailey (1985) 176 

Cal.App.3d 402, 406 (Bailey).) The court further observed that 

“any ambiguity was removed when the officer more or less 

immediately exited his patrol vehicle and began to approach 

Kidd’s car. Although the officer’s approach was, according to 

record, not made in a particularly aggressive or intimidating 

manner, a reasonable person in Kidd’s circumstances would not 

have felt free to leave.” (Kidd, at pp. 21–22.)

We granted review to resolve this conflict in the Courts of 

Appeal. 

II. DISCUSSION

The outcome here turns on the distinction between a 

consensual encounter and a detention. Deputy Grubb did not 

stop the car. It was already parked on the street when he saw 

it. Officers can approach people on the street and engage them 

in consensual conversation. (People v. Brown (2015) 61 Cal.4th 

968, 974 (Brown).) So merely walking up to someone in a parked 

car is not a detention. The issue presented is whether there are 

additional circumstances, the totality of which transformed the 

encounter into a detention. 

“An officer may approach a person in a public place and 

ask if the person is willing to answer questions. If the person 

voluntarily answers, those responses, and the officer’s 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

6

observations, are admissible in a criminal prosecution. 

[Citations.] Such consensual encounters present no 

constitutional concerns and do not require justification. 

[Citation.] However, ‘when the officer, by means of physical 

force or show of authority, has in some way restrained the 

liberty of a citizen,’ the officer effects a seizure of that person, 

which must be justified under the Fourth Amendment to the 

United States Constitution. [Citations.] In situations involving 

a show of authority, a person is seized ‘if “in view of all of the 

circumstances surrounding the incident, a reasonable person 

would have believed that he was not free to leave,” ’ or 

‘ “otherwise terminate the encounter” ’ [citation], and if the 

person actually submits to the show of authority.” (Brown, 

supra, 61 Cal.4th at p. 974.)

We consider the totality of the circumstances in 

determining whether a detention occurred. (Florida v. Bostick

(1991) 501 U.S. 429, 437 (Bostick); Michigan v. Chesternut

(1988) 486 U.S. 567, 572 (Chesternut); Brown, supra, 61 Cal.4th 

at p. 980.) Relevant circumstances may include: the presence 

of multiple officers, an officer’s display of a weapon, the use of 

siren or overhead emergency lights, physically touching the 

person, the use of a patrol car to block movement, or the use of 

language or of a tone of voice indicating that compliance with 

the officer’s request is compelled. (Chesternut, at p. 575; In re 

Manuel G. (1997) 16 Cal.4th 805, 821.) The facts are reviewed 

objectively. As People v. Franklin (1987) 192 Cal.App.3d 935 

(Franklin) explained, “The officer’s state of mind is not relevant 

. . . except insofar as his overt actions would communicate that 

state of mind.” (Id. at p. 940.) Likewise, “the individual citizen’s 

subjective belief [is] irrelevant . . . .” (Manuel G., at p. 821.) 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

7

Where, as here, a suppression motion is made before a 

magistrate in conjunction with a preliminary hearing and no 

new evidence is presented in superior court, we are “concerned 

solely with the findings of the [magistrate].” (People v. Gentry

(1992) 7 Cal.App.4th 1255, 1262.) We defer to the magistrate’s 

express and implied findings of fact if supported by substantial 

evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301; 

People v. Romeo (2015) 240 Cal.App.4th 931, 941–942; People v. 

Hua (2008) 158 Cal.App.4th 1027, 1033; Gentry, at p. 1262.) We 

independently assess whether the challenged search or seizure 

violates the Fourth Amendment, applying federal constitutional 

standards. (Brown, supra, 61 Cal.4th at p. 975; People v. Lenart

(2004) 32 Cal.4th 1107, 1118; see Cal. Const., art. I, § 28, subd. 

(f)(2).)

It is clear that Tacardon was detained at some point. The 

question is when. The timing is critical to the outcome. The 

parties agree that Deputy Grubb had no reasonable suspicion of 

criminal activity before he smelled marijuana smoke and saw 

what appeared to be bags of marijuana in the backseat. So if 

Tacardon was detained before that point, the action was 

unjustified and evidence subsequently discovered during the 

deputy’s search was subject to suppression. (Terry v. Ohio

(1968) 392 U.S. 1, 12, 15, 21–22.) 

A. Pulling Behind, Activating Spotlight, and 

Approaching the Parked Car

In Brown, supra, 61 Cal.4th 968, the circumstances were 

these. At 10:37 p.m., a 911 caller reported that more than four 

people were fighting in an alley behind his house, and someone 

said they had a loaded gun. The dispatcher sent out this 

information and Deputy Geasland responded, using lights and 

siren. (Id. at pp. 972–973.) As he drove down the alley, 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

8

Geasland saw a car driving toward him and away from the 

reported location. Geasland yelled to the driver, “ ‘Hey. Did you 

see a fight?’ ” (Id. at p. 973.) Brown drove on without 

responding. Seeing no one else in the alley, Geasland drove 

after Brown. When he saw Brown’s car parked nearby, he 

stopped behind it and activated the patrol car’s colored 

emergency lights. He approached and spoke to Brown, whom he 

arrested for driving under the influence. (Ibid.) We concluded 

that Brown was detained when the deputy stopped behind his 

parked car and turned on the patrol car’s overhead emergency 

lights. Observing that “[t]he Supreme Court has long 

recognized that activating sirens or flashing lights can amount 

to a show of authority” (id. at p. 978), we concluded that, under 

the circumstances presented, “a reasonable person in Brown’s 

position would have perceived Geasland’s actions as a show of 

authority, directed at him and requiring that he submit by 

remaining where he was. As a sister-state court has observed: 

‘We see little difference, from the perspective of the occupants in 

the vehicle, [between] turning on the blue lights behind a 

moving vehicle and turning on the blue lights behind a parked 

vehicle. The lights still convey the message that the occupants 

are not free to leave.’ ” (Ibid., quoting State v. Gonzalez

(Tenn.Crim.App. 2000) 52 S.W.3d 90, 97.) 

Brown did not, however, adopt a bright line rule that “an

officer’s use of emergency lights in close proximity to a parked 

car will always constitute a detention of the occupants.” (Brown, 

supra, 61 Cal.4th at p. 980.) Instead, we emphasized such an 

inquiry “ ‘must take into account “ ‘all of the circumstances

surrounding the incident’ ” in each individual case.’ ” (Ibid.) We 

gave the following example: “a motorist whose car had broken 

down on the highway might reasonably perceive an officer’s use 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

9

of emergency lights as signaling that the officer has stopped to 

render aid or to warn oncoming traffic of a hazard, rather than 

to investigate crime. Ambiguous circumstances may be clarified 

by whether other cars are nearby or by the officer’s conduct 

when approaching.” (Ibid.) We observed, on the facts before us, 

that “no circumstances would have conveyed to a reasonable 

person that Deputy Geasland was doing anything other than 

effecting a detention. Under the totality of these circumstances, 

Brown was detained when Geasland stopped behind the parked 

car and turned on his emergency lights.” (Ibid.)

This case involves the use of a spotlight, rather than red 

and blue emergency lights. Accordingly, we consider how the 

use of a spotlight affects the analysis of whether a detention took 

place. 

Several Courts of Appeal have found the distinction 

between a spotlight and red and blue emergency lights 

significant. In Perez, supra, 211 Cal.App.3d 1492, an officer 

pulled up facing the defendant’s parked car, leaving room for the 

defendant to drive away, and activated the patrol car’s high 

beams and spotlights. The officer walked up to the car, knocked 

on the window, identified himself, shined a flashlight into the 

car, and asked the defendant to roll the window down. The 

officer immediately smelled marijuana. (Id. at pp. 1494–1495.) 

The Court of Appeal found no detention, noting that the officer 

had not blocked the defendant’s car or activated the patrol car’s 

emergency lights. It further reasoned that, “[w]hile the use of 

high beams and spotlights might cause a reasonable person to 

feel himself the object of official scrutiny, such directed scrutiny 

does not amount to a detention.” (Id. at p. 1496.) 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

10

In People v. Rico (1979) 97 Cal.App.3d 124, an officer 

investigating a recent shooting saw a car driving on the freeway 

that matched the description of a suspect vehicle. The officer 

pulled alongside the car and shined a spotlight on it. He then 

dropped back and followed the car for approximately five 

minutes without activating his emergency lights. The driver

eventually pulled over on his own, and the officer stopped 

several car lengths behind, again turned on his spotlight, and 

engaged the car’s occupants. He ultimately recovered a rifle, the 

butt of which he saw sticking out from under the driver’s seat. 

(Id. at pp. 128–129.) The appellate court concluded that the 

officer’s initial “momentary use of the spotlight” to observe the 

suspect vehicle’s occupants as he was driving next to them was 

not a detention “in the absence of flashing lights, sirens or a 

directive over the loudspeaker.” (Id. at p. 130.) Indeed, the 

officer “immediately pulled back without any show of authority.” 

(Ibid.)

In Franklin, supra, 192 Cal.App.3d 935, an officer saw the 

defendant walking in a high crime area wearing a full-length 

camouflage jacket on a warm summer evening. Finding this 

odd, the officer shined a spotlight on the defendant and parked 

the patrol car directly behind him. The defendant approached 

the officer and asked, “ ‘What’s going on?’ ” (Id. at p. 938.) He 

was sweaty and “ ‘jittery.’ ” (Ibid.) When the officer asked the 

defendant to remove his hands from his pockets, he saw what 

appeared to be blood on the defendant’s hands and a vial in his 

pocket containing white powder. The defendant fled and was 

detained. (Ibid.) The Court of Appeal concluded that shining a 

spotlight on the defendant and parking behind him was not a 

detention: “the officer did not block [the defendant’s] way; he 

directed no verbal requests or commands to [the defendant]. 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

11

Further, the officer did not alight immediately from his car and 

pursue [the defendant]. Coupling the spotlight with the officer’s 

parking the patrol car, [the defendant] rightly might feel himself 

the object of official scrutiny. However, such directed scrutiny 

does not amount to a detention.” (Id. at p. 940.)

A survey of federal and sister-state authorities yields 

similar results. (U.S. v. Campbell-Martin (8th Cir. 2021) 17 

F.4th 807, 811–812, 814 [no detention where officer parked two 

spots away from the defendant’s car, shined a spotlight on it, 

and approached on foot]; U.S. v. Tafuna (10th Cir. 2021) 5 F.4th 

1197, 1199, 1201–1202 [no detention where officer parked with 

his patrol car at an angle to the defendant’s driver’s side door, 

activated a bar of “takedown” lights, and approached the 

defendant’s car]; see also id. at p. 1201 [citing cases from the 1st, 

7th, 8th, and 9th Cir.]; U.S. v. Tanguay (1st Cir. 2019) 918 F.3d 

1, 2–3, 7–8 (Tanguay) [no detention where officer parked about 

10 feet behind the defendant’s car, activated his floodlights, and 

approached on foot]; People v. Cascio (Colo. 1997) 932 P.2d 1381, 

1382–1383, 1386–1388 (Cascio) [no detention where two 

deputies parked about 10 feet behind defendant’s van, trained a 

spotlight on it, and approached on foot].) Applying the totality 

of the circumstances test to the record before them, these courts 

held there had been no detention despite the use of a spotlight. 

(But see U.S. v. Delaney (D.C. Cir. 2020) 955 F.3d 1077, 1079–

1080, 1082–1083 [detention occurred where officers parked 

within a few feet of the nose of the defendant’s car in a narrow 

parking lot, significantly restricting the defendant’s movement, 

and activated their “take-down light”].)

As noted, Kidd, supra, 36 Cal.App.5th 12 came to a 

contrary conclusion based on facts similar to those presented 

here. In that case a patrolling officer saw two men parked on a 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

12

residential street with the car’s fog lights on at 1:30 in the 

morning. The officer decided to check and see if the occupants 

were stranded, “ ‘or what exactly they[ were] doing.’ ” (Id. at p. 

15.) He drove past the car, made a U-turn and parked 10 feet 

behind the vehicle, shining two spotlights on it. As he 

approached the car, he smelled marijuana smoke and asked the

men what they were doing. Kidd was in the driver’s seat. The 

passenger was seen attempting to hide bags of suspected 

marijuana. The officer asked if either man was on probation or 

parole. When Kidd admitted he was on probation, the officer 

told both men to leave the car and sit in the patrol vehicle. A 

subsequent probation search revealed packaged marijuana, a 

digital scale, a pistol with a serial number removed, and 142 

alprazolam pills. (Id. at pp. 15−16.)

The Kidd court held the defendant was detained without 

reasonable suspicion “as soon as the officer pulled in behind him 

and turned his spotlights on him.” (Kidd, supra, 36 Cal.App.5th 

at p. 22.) Kidd began by acknowledging the authority of Rico 

and Franklin that, without more, the mere act of parking behind 

someone “would not reasonably be construed as a detention,” nor 

would shining a spotlight on a person. (Id. at p. 21.) It also 

acknowledged that the officer did not block the car, activate 

emergency lights, or approach in an aggressive or intimidating 

manner. (Id. at pp. 21–22.) The court nonetheless concluded 

that the defendant was detained under the totality of the 

circumstances. (Id. at p. 21.) Quoting People v. Garry (2007) 

156 Cal.App.4th 1100, 1111−1112 (Garry) (see discussion, post, 

at pp. 21–22), it concluded the “officer’s ‘show of authority’ was 

so intimidating as to communicate to any reasonable person 

that he or she was ‘ “ ‘not free to decline [his] requests or 

otherwise terminate the encounter.’ ” ’ ” (Kidd, at p. 21.) As for 
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Opinion of the Court by Corrigan, J.

13

the significance of the spotlights, the court reasoned: “motorists 

are trained to yield immediately when a law enforcement vehicle 

pulls in behind them and turns on its lights. Regardless of the 

color of the lights the officer turned on, a reasonable person in 

[the defendant’s] circumstances ‘would expect that if he drove 

off, the officer would respond by following with red light on and 

siren sounding.’ ” (Kidd, at p. 21, quoting Bailey, supra, 176 

Cal.App.3d at p. 406.) 

The Kidd court’s discussion of the spotlight differs from 

the other appellate court decisions. By concluding that a 

reasonable person would not feel free to leave when an officer 

pulls in behind the person’s parked car and turns on the patrol 

car’s lights, “[r]egardless of the color of the lights the officer 

turned on” (Kidd, supra, 36 Cal.App.5th at p. 21), the court 

described the use of a spotlight in this circumstance as 

essentially indistinguishable from the activation of red and blue 

emergency lights. We disagree. As other courts have held, the 

use of a spotlight generally conveys a different meaning to a 

reasonable person than the use of a patrol car’s emergency 

lights. Red and blue lights are almost exclusively reserved for 

emergency and police vehicles. (See Veh. Code, §§ 21055, subd. 

(b), 25258, subd. (b)(1), 25269.) An officer’s use of flashing red 

lights, or combination of red and blue lights, behind a vehicle 

typically conveys a command to stop. (Brown, supra, 61 Cal.4th 

at p. 978; but see id. at p. 980.) Indeed, a motorist may not be 

convicted of evading police unless a red light is displayed. (Veh. 

Code, § 2800.1, subd. (a)(1); People v. Hudson (2006) 38 Cal.4th 

1002, 1008.) 

By contrast, a reasonable person would understand that 

spotlights can have a practical function that differs from the 

essentially communicative function of emergency lights. A
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

14

spotlight can be used to illuminate the surrounding area for 

safety or other purposes unrelated to the projection of authority. 

Proper illumination enhances the officer’s ability to make 

“ ‘swift, on-the-spot decisions’ ” that are appropriate to the 

circumstances. (Brown, supra, 61 Cal.4th at p. 984, quoting 

United States v. Sokolow (1989) 490 U.S. 1, 11.)

1

 And, in certain 

circumstances, depending on how the spotlight is used, it might 

help both the officer and the civilian see what the other is doing 

and make decisions accordingly. Thus, unlike Kidd, we believe 

a reasonable person would distinguish between a spotlight and 

1 The dissent asserts that the police do not have the same 

latitude to conduct an investigation at night as they do during 

the day. (Dis. opn. of Liu, J., post, at pp. 10–11.) The authorities 

cited are inapposite. Penal Code sections 840 and 1533 limit the 

ability to arrest or execute a search warrant at night out of 

concern for the sanctity of the home. The cited sections do not 

impose general restrictions on an officer’s authority or 

responsibility to investigate crimes at night. Further, they do 

not at all restrict police investigations in public places. Instead, 

Penal Code section 840 prohibits an arrest for the commission of 

a misdemeanor or infraction between 10:00 p.m. and 6:00 a.m. 

and specifically excepts arrests “made in a public place.” (Id.,

subd. (2).) Penal Code section 1533 requires that a search 

warrant be served only between 7:00 a.m. and 10:00 p.m. absent 

a finding of good cause. (See also People v. Watson (1977) 75 

Cal.App.3d 592, 595–596 [Pen. Code, § 1533 is concerned with 

the drastic intrusion upon a person’s residence by execution of a 

search warrant].) 

The nonbinding authority of U.S. v. Wilson (4th Cir. 2000) 

205 F.3d 720, 723–724 and U.S. v. McLemore (8th Cir. 2018) 887 

F.3d 861, 866–867 hold that an officer’s inability to see does not 

justify a suspicionless detention. They do not address whether 

an officer can investigate darkened areas or whether the use of 

illumination effects a detention.
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

15

red and blue emergency lights in considering whether the 

person was free to leave or otherwise terminate the encounter.

As in Brown, however, we decline to state a bright-line 

rule. A court must consider the use of a spotlight together with 

all of the other circumstances. It is certainly possible that the 

facts of a particular case may show a spotlight was used in an 

authoritative manner. These may include flashing lights at the 

driver to pull the car over or attempting to blind the driver, 

which would be relevant considerations under the totality of the 

circumstances. (See, e.g., Cascio, supra, 932 P.2d at p. 1388.) 

But use of a spotlight, standing alone, does not necessarily effect 

a detention. 

Considering the circumstances here, Tacardon was not 

detained when Deputy Grubb parked behind the BMW, shined 

a spotlight on it, and began to approach on foot. Grubb made 

eye contact with Tacardon as he drove by. He then made a Uturn, parked 15 to 20 feet behind Tacardon’s car, and employed 

the spotlight. After taking about 20 seconds to inform the 

dispatcher, he began walking towards the car. The deputy’s 

conduct up to this point conveyed none of the coercive hallmarks 

of a detention. He did not stop Tacardon’s vehicle or block him 

from driving away. He did not activate a siren or emergency 

lights or give directions by loudspeaker. He did not approach 

rapidly or aggressively on foot or draw a weapon. He gave no 

commands and made no demands; in fact, he did not seem to 

communicate at all with Tacardon or his passengers until the 

woman got out of the car and began to walk away. As we explain 

below (see discussion, post, at p. 26), it was only after she was 

given, and complied with, Grubb’s directive to remain that she

was detained.
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Opinion of the Court by Corrigan, J.

16

Until that point, the deputy’s conduct was consistent with 

that in United States v. Drayton (2002) 536 U.S. 194 (Drayton). 

There, the high court found no detention where there was “no 

application of force, no intimidating movement, no 

overwhelming show of force, no brandishing of weapons, no 

blocking of exits, no threat, no command, not even an 

authoritative tone of voice.” (Id. at p. 204.) In this context, a 

reasonable person would view the deputy’s use of a spotlight as 

similarly lacking in coercive force. The deputy used the 

spotlight as a matter of course. There was no evidence it was 

unusually bright or flashing, or that Tacardon was blinded or 

overwhelmed by the light. Certainly, a reasonable person would 

notice the deputy’s use of a spotlight, and depending on how it 

is used, a spotlight may contribute to the coerciveness of a police 

encounter. But under the totality of the circumstances here, 

Tacardon was not detained. 

The dissent argues that this conclusion “strains credulity.” 

(Dis. opn. of Liu, J., post, at p. 4.) Citing a magazine article and 

a manual by a patrol officer, the dissent asserts that it is a 

matter of common experience for both officers and civilians alike 

that a spotlight has a disorienting effect on a car’s occupants. 

(Id. at p. 6.) It also relies on cases which noted some evidence of 

that effect. (Id. at p. 7.) But no such evidence was elicited here. 

The deputy was not asked whether he had been trained to use 

his spotlight in that fashion, or whether its use in this 

circumstance was disorienting. Tacardon did not testify that he 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

17

was blinded by the spotlight. For this reason, the nonbinding 

cases cited by the dissent are distinguishable.2 

2

In U.S. v. Delaney, supra, 955 F.3d 1077, the officers 

parked their patrol car approximately “ ‘[three] feet away from 

the nose of the [defendant’s] Jeep’ ” and trained their patrol car’s 

“take-down light” on it. (Id. at pp. 1082, 1083.) The court noted 

that “[s]uch aptly named lights ‘are designed to illuminate the 

stopped car as well as to provide protection for an officer by 

blinding and disorienting the car’s occupants if they look back 

at the squad car.’ ” (Id. at p. 1083, quoting U.S. v. Shelby (7th 

Cir. 2000, Oct. 26, 2000, No. 00-1873) 2000 WL 1611120, p. *1, 

fn. 1 [unpublished table decision].) Notably, the unpublished 

case Delaney quoted for the description of the “take-down light” 

provides no source material for this factual assertion; nor did it 

involve a Fourth Amendment challenge to the defendant’s 

detention in that case. (See Shelby, supra, 2000 WL 1611120, 

at pp. *1, fn. 1, *2.) 

In U.S. v. Sigmond-Ballesteros (9th Cir. 2002) 285 F.3d 

1117, the officer in that case, having “pulled alongside 

Defendant’s truck” as it traveled in the slow lane of a highway, 

“shined his alley light almost directly into Defendant’s face” 

while the defendant was still driving. (Id. at pp. 1120, 1124.) 

The defendant put his hand up to shield his eyes from the light. 

(Id. at p. 1120.) The officer described the defendant’s act of 

covering his face as “ ‘suspicious behavior,’ ” but the court 

disagreed and concluded that this gesture did not supply 

reasonable suspicion to detain. (Id. at p. 1124.) It did not 

consider whether use of such illumination effected a detention. 

(Ibid.)

In State v. Garcia-Cantu (Tex.Crim.App. 2008) 253 S.W.3d 

236, the officer trained a spotlight on the defendant’s truck 

“even before he stopped his [patrol] car” (id. at p. 245), blocked 

the defendant’s truck (id. at p. 246), approached the car in an 

authoritative manner (id. at p. 248), asked, “ ‘What are you 

doing here?’ ” (ibid.), shined a flashlight into the defendant’s 

eyes, and requested identification (ibid.). The defendant 

testified at the suppression hearing that when the officer pulled 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

18

Citing a treatise, the dissent reasons that “[s]ingling out a 

parked car and training a powerful spotlight on it from behind, 

as [Deputy] Grubb did here, is ‘conduct significantly beyond’ any 

sort of ‘nonoffensive contact . . . between two ordinary citizens.’ ” 

(Dis. opn. of Liu, J., post, at p. 9, quoting 4 LaFave, Search and 

Seizure (6th ed. 2002) § 9.4(a), pp. 597, 598, fns. omitted.) But 

LaFave, and the extra-jurisdictional cases cited, do not support 

the conclusion that the circumstances of this case qualified as 

such a “significant[]” departure from ordinary expectations as to 

effect a detention. (Id. at p. 597.) Addressing specifically the 

subject of police contact with persons seated in parked vehicles, 

LaFave acknowledges that no seizure occurs when an officer 

“merely walks up [and poses a question] to a person . . . who is 

seated in a vehicle located in a public place.” (Id. at pp. 591–

592, fn. omitted; see also id. at p. 610.) Significantly, its list of 

supporting citations includes Tanguay, supra, 918 F.3d 1, which 

held that the officers’ act of parking behind a car, activating

floodlights, and approaching on foot did not constitute a 

detention (LaFave, at p. 598, fn. 81, citing Tanguay, at p. 7), and 

U.S. v. Mabery (8th Cir. 2012) 686 F.3d 591, which held that the 

officer’s act of shining a spotlight on Mabery’s vehicle from the 

street did not constitute a seizure. (LaFave, at p. 592, fn. 62; see 

Mabery, at pp. 595–597.) None of the circumstances LaFave 

cites as likely to elevate the encounter to a seizure are present 

in this case: an order to “ ‘freeze’ ” or get out of the car, “boxing 

the car in, approaching it on all sides by many officers, pointing 

a gun at the suspect and ordering him to place his hands on the 

up behind him, he “couldn’t see anything more except a big 

spotlight, ‘a big white light.’ ” (Id. at p. 240.) The court found a 

detention based on the totality of the circumstances. (Id. at p. 

249.) 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

19

steering wheel, or use of flashing lights as a show of authority.” 

(LaFave, at pp. 611, 612–613, italics added, fns. omitted; see 

also id. at pp. 613–614, fn. 130 [citing, among other authorities, 

Brown, supra, 61 Cal.4th 968 and contrasting cases where only 

use of spotlight was involved].) 

Tacardon reasons that he was clearly the focus of the 

deputy’s “official scrutiny” when the deputy made eye contact, 

turned the patrol car around, parked behind the BMW, 

activated his spotlight, and began walking towards the car. 

According to Tacardon, he “knew he was engaged in an 

encounter with the authorities even before the deputy 

approached the car on foot, and was well aware of the light 

glaring immediately behind his car.” He cites Kidd’s holding 

that “any ambiguity [as to whether a detention occurred] was 

removed when the officer more or less immediately exited his 

patrol vehicle and began to approach [the defendant’s] car. 

Although the officer’s approach was, according to record, not 

made in a particularly aggressive or intimidating manner, a 

reasonable person in [the defendant’s] circumstances would not 

have felt free to leave.” (Kidd, supra, 36 Cal.App.5th at pp. 21–

22.) 

Under Tacardon’s proposed rule, any person who is aware 

of police scrutiny and is then illuminated by a spotlight is 

necessarily detained. Such a rigid approach fails to properly 

honor the totality of the circumstances test noted in Brown. A 

person approached by an officer may well consider himself the 

object of official scrutiny. Indeed he is. An officer of the law has 

initiated a contact for some reason and is requesting interaction. 

The question is where Fourth Amendment jurisprudence draws 

the line between mere consensual contact, which requires no 

justification, and a detention, which requires articulation of a 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

20

reasonable suspicion that a crime may be afoot. But the high 

court has long held an officer’s mere approach does not 

constitute a seizure. (Bostick, supra, 501 U.S. at p. 434; 

Chesternut, supra, 486 U.S. at pp. 575–576; INS v. Delgado

(1984) 466 U.S. 210, 216 (Delgado); Florida v. Royer (1983) 460 

U.S. 491, 497 (plur. opn. of White, J.).) While a reasonable 

person in Tacardon’s position might “feel himself the object of 

official scrutiny, such directed scrutiny does not amount to a 

detention.” (Perez, supra, 211 Cal.App.3d at p. 1496; accord, 

People v. Chamagua (2019) 33 Cal.App.5th 925, 927, 929; 

Franklin, supra, 192 Cal.App.3d 935, 940.) A detention occurs, 

not the moment a person knows an officer would like to interact, 

but when a person would reasonably believe he or she “ ‘ “was 

not free to leave” ’ or ‘ “otherwise terminate the encounter,” ’ ” 

and submits to the officer’s show of authority. (Brown, supra, 

61 Cal.4th at p. 974.)

Notably, courts ruling a detention occurred have 

emphasized other coercive aspects of the officer’s approach that 

are not present here. Wilson v. Superior Court (1983) 34 Cal.3d 

777 is instructive in considering when targeted scrutiny might 

transform a contact into a detention. There, an undercover 

narcotics officer approached the defendant as he walked off a 

plane in the Los Angeles International Airport. The officer 

identified himself, displayed his badge, and asked if he “ ‘might 

have a minute of [the defendant’s] time.’ ” (Id. at p. 781.) When 

the defendant said, “ ‘Sure,’ ” the officer advised him that he was 

“ ‘conducting a narcotics investigation, and that [he] had 

received information that [the defendant] would be arriving 

today from Florida carrying a lot of drugs.’ ” (Ibid., italics 

omitted.) We found that a detention occurred and clarified when 

it took place. “[I]t is evident that Detective Kaiser did not detain 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

21

Wilson, for federal constitutional purposes, merely by 

approaching him, identifying himself as a police officer, and 

asking if he might have a minute of his time. [H]owever, the 

officer did not simply ask Wilson if he would permit a search of 

his luggage. Instead, he advised Wilson that he was conducting 

a narcotics investigation and that he ‘had received information 

that . . . [Wilson] would be arriving today from Florida carrying 

a lot of drugs.’ ” (Id. at p. 790, italics omitted.) At that point 

“the entire complexion of the encounter changed . . . .” (Id. at p. 

791.) “Common sense suggests to us that in such a situation, an 

ordinary citizen, confronted by a narcotics agent who has just 

told him that he has information that the citizen is carrying a 

lot of drugs, would not feel at liberty simply to walk away from 

the officer.” (Id. at p. 790.) 

In Garry, supra, 156 Cal.App.4th 1100, an officer on night 

vehicle patrol saw the defendant standing near a parked car. He 

pulled up about 35 feet away, turned the patrol car’s spotlight 

on the defendant, and walked “ ‘briskly’ ” toward him. (Id. at p. 

1104.) When the defendant told the officer, “ ‘ “I live right 

there” ’ ” and pointed to a house, the officer replied, “ ‘Okay, I 

just want to confirm that,’ ” and asked the defendant if he was 

on probation or parole. (Ibid.) When the defendant said he was 

on parole, the officer grabbed him and a struggle ensued. The 

officer handcuffed the defendant and searched him, discovering 

narcotics. (Ibid.) The appellate court found a detention, 

emphasizing that the officer had rushed at the defendant, 

disregarded the defendant’s representation that he was merely 

standing outside of his own home, and voiced an intention “ ‘to 

confirm that.’ ” (Ibid.; see id. at pp. 1111–1112.) The court 

reasoned: “any reasonable person who found himself in 

defendant’s circumstances, suddenly illuminated by a police 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

22

spotlight with a uniformed, armed officer rushing directly at 

him asking about his legal status, would believe themselves to 

be ‘under compulsion of a direct command by the officer.’ ” (Id. 

at p. 1112, quoting People v. McKelvy (1972) 23 Cal.App.3d 1027, 

1034.) 

In People v. Kasrawi (2021) 65 Cal.App.5th 751, review 

granted September 1, 2021, S270040, an officer patrolling in a 

residential neighborhood early one morning saw the defendant 

cross the street and begin to enter a car. The officer turned on 

the patrol car’s spotlight and “pulled up behind and to the side 

of” the defendant’s vehicle. (Id. at p. 754.) The defendant turned 

to face the officer, who immediately approached and walked to 

within a few feet of the defendant, asking him where he was 

coming from. The defendant responded that he was resting 

while on a drive from Los Angeles, which the officer found 

suspicious because the street was several miles from the 

highway. The officer detained and handcuffed the defendant 

and discovered an outstanding warrant. A search incident to 

arrest yielded stolen items from nearby cars. (Id. at pp. 754–

755.) The appellate court concluded that the defendant was 

detained before he responded to the officer’s inquiry. (Id. at p. 

756.) It emphasized that the officer parked within a few feet of 

the defendant’s car; “ ‘bathed’ ” the defendant with light; 

immediately approached with “speed and surety,” as 

memorialized by the officer’s body camera; and asked an 

immediate, pointed question, which demanded an answer. (Id. 

at pp. 759, 760.) 

The facts of Wilson, Garry, and Kasrawi are 

distinguishable from the events here. Upon initially 

approaching Tacardon’s vehicle, Deputy Grubb did not walk 

rapidly, pose any questions to Tacardon, or accuse him of 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

23

anything. The deputy’s nighttime approach, aided by a spotlight 

for illumination, did not, without more, effect a detention. 

People v. Kidd, supra, 36 Cal.App.5th 12 is disapproved to the 

extent it is inconsistent with the holding here.

Citing other dissenting opinions and legal commentators, 

the dissent posits that the “ ‘free to leave’ standard has long been 

criticized for having ‘an air of unreality’ and for lacking ‘common 

. . . understanding’ of how civilians experience encounters with 

the police.” (Dis. opn. of Liu, J., post, at p. 8, quoting Drayton,

supra, 536 U.S. at pp. 208, 210 (dis. opn. of Souter, J.).) Our 

dissenting colleague emphasizes that he personally would not 

feel free to simply drive away from the officer in this 

circumstance, and suspects others would not either. (Dis. opn. 

of Liu, J., post, at p. 2.) As other courts have noted, however, 

“[t]he ‘free to walk away’ test . . . must be read in conjunction 

with the Court’s frequent admonitions that ‘a seizure does not 

occur simply because a police officer approaches an individual 

and asks a few questions.’ [Citations.] What emerges between 

the two imperatives, therefore, is the directive that police 

conduct, viewed from the totality of the circumstances, must 

objectively communicate that the officer is exercising his or her 

official authority to restrain the individual’s liberty of 

movement before we can find that a seizure occurred.” (U.S. v. 

Cardoza (1st Cir. 1997) 129 F.3d 6, 16; see also, e.g., Delgado, 

supra, 466 U.S. at p. 216 [“While most citizens will respond to a 

police request, the fact that people do so, and do so without being 

told they are free not to respond, hardly eliminates the 

consensual nature of the response”].) Applying this standard, 

the high court has held, for example, that workers were not 

seized when armed law enforcement agents, displaying badges 

and positioned near the exits, questioned the workers at their 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

24

job site about their citizenship as part of a “ ‘factory survey[].’ ” 

(Delgado, at p. 212; see id. at pp. 212–213, 215–221.) It likewise 

determined there was no detention where the defendant, in an 

airport, agreed to speak to law enforcement after knowing he 

had attracted the officer’s attention, and the officer displayed 

his badge and asked to talk. (Florida v. Rodriguez (1984) 469 

U.S. 1, 4–6 (per curiam).) 

In Drayton, supra, 536 U.S. 194, plain-clothes officers 

boarded a Greyhound bus at a scheduled stop after securing the 

driver’s permission to conduct a routine drug and weapons 

interdiction effort. Officer Lang displayed his badge and spoke 

to each passenger, positioning himself so that he did not block 

the aisle. (Id. at pp. 197–198.) Drayton and his companion 

Brown were seated together. The officer asked if they were 

traveling with luggage, and the pair pointed to a bag in the 

overhead rack. (Id. at pp. 198–199.) Lang asked, “ ‘Do you mind 

if I check [the bag]?’ ” and Brown said, “ ‘Go ahead.’ ” (Id. at p. 

199.) The check revealed no contraband. Brown then consented 

to a pat-down search of his person, which resulted in the 

discovery of contraband. Brown was arrested. (Ibid.) Lang then 

asked Drayton, “ ‘Mind if I check you?’ ” (Ibid.) Drayton lifted 

his hands and a pat-down revealed objects similar to drug 

packaging. Drayton was likewise arrested. Further 

investigation revealed both men had bundles of cocaine powder 

duct-taped between several pairs of their boxer shorts. (Ibid.) 

The court held Drayton had not been detained before the patdown revealed what appeared to be drug packaging. (Id. at pp. 

203–206.) It concluded that “ample” evidence pointed to a 

consensual encounter. (Id. at p. 204.) 

Here, though Grubb made clear his interest in speaking 

with Tacardon, he did not objectively communicate that he was 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

25

exercising his official authority to restrain him. If the high court 

believes the standard should be changed or applied in a different 

way, it may certainly so conclude. Until then, however, it is the 

standard the court prescribes, and we are bound by the court’s 

application of that standard. 

The dissent also questions whether today’s result creates 

an incentive for citizens to drive away from officer encounters, 

risking escalation and danger for both the officer and the 

civilian. (Dis. opn. of Liu, J., post, at pp. 9–12.) But as the high 

court has recognized in other contexts, individuals frequently 

have alternatives for asserting their Fourth Amendment rights, 

such as refusing to answer the officer’s questions or otherwise 

declining to act in the manner the officer has requested. 

(Bostick, supra, 501 U.S. at pp. 435–437.) And while many lawabiding citizens will choose to cooperate with the police “because 

[they] know that their participation enhances their own safety 

and the safety of those around them,” that fact alone does not 

negate the consensual nature of their response. (Drayton, 

supra, 536 U.S. at p. 205.) 

B. Detention of the Passenger

Tacardon argues that Deputy Grubb’s detention of the 

female passenger who got out of the car effectively 

communicated to Tacardon that he also was not free to leave. 

The Court of Appeal rejected this assertion. Although the court 

had “no difficulty concluding [the passenger] was detained” 

when Grubb “ordered her to remain on the sidewalk near the 

[car],” it found “no evidence defendant observed the deputy’s 

interaction with [the passenger], or that the deputy conveyed to 

defendant that he, like [the passenger], was required to remain.” 

(Tacardon, supra, 53 Cal.App.5th at p. 100.) It therefore 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

26

concluded that “the magistrate’s implied finding that defendant 

was not detained at this point is supported by substantial 

evidence.” (Ibid.) 

It is clear that Grubb detained the female passenger. As 

the deputy approached Tacardon’s car, the passenger “jumped 

out” of the back seat, closed the door behind her, and walked 

towards the back of the BMW. When the deputy asked her what 

she was doing, she responded, “I live here.” He then directed 

her to stand near the sidewalk, and she complied. At this point, 

the woman was detained. 

The question is what effect, if any, did Grubb’s conduct 

have on Tacardon. It is well established that an officer’s show 

of authority towards others can communicate that the defendant 

is also not free to leave or terminate the encounter. In Brendlin 

v. California (2007) 551 U.S. 249 (Brendlin), for example, the 

Supreme Court held that a passenger riding in a vehicle is 

detained when an officer pulls a driver over for a traffic 

violation. The court there emphasized that “an ‘unintended 

person . . . [may be] the object of the detention,’ so long as the 

detention is ‘willful’ and not merely the consequence of ‘an 

unknowing act.’ ” (Id. at p. 254, quoting Brower v. Inyo County

(1989) 489 U.S. 593, 596.) It explained: when a car containing 

passengers is pulled over, “any reasonable passenger [will 

understand] the police officers to be exercising control to the 

point that no one in the car [is] free to depart without police 

permission.” (Brendlin, at p. 257.)

But for this rule to apply, the defendant must be aware of 

the officer’s show of authority directed at another. In Brendlin, 

for example, the officer used “ ‘flashing lights’ ” to stop the 

vehicle in which Brendlin was riding. (Brendlin, supra, 551 U.S. 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

27

at p. 260.) Likewise, in Brown, supra, 61 Cal.4th 968, the 

deputy “pulled behind [the defendant’s] car and activated the 

overhead emergency lights on his patrol car.” (Id. at p. 973.) We 

rejected the People’s argument that Brown was not aware of the 

deputy’s presence until the deputy approached the car on foot as 

unsupported by substantial evidence. “[The deputy] did not 

testify that Brown was unconscious, probing under the seat, or 

otherwise distracted. The reasonable inference to be drawn 

from the record was that Brown was aware of the deputy’s 

overhead emergency lights flashing in the dark immediately 

behind his car.” (Id. at p. 980.)

Here, then, the critical factual question was whether 

Tacardon overheard or otherwise perceived the deputy’s 

interaction with the passenger. But the record shows the 

magistrate did not consider this question. At the preliminary 

hearing, the prosecutor argued that the deputy’s directives to 

the passenger were “irrelevant with respect to the defendant. 

Whether or not he stopped her under the Fourth Amendment to 

keep her from going into that house is not something I need to 

argue to the court because she’s not here.” That argument

confuses the issue of the passenger’s standing to challenge her 

own detention with the effect her detention may have had on 

Tacardon. The magistrate appeared to adopt the prosecutor’s 

position, commenting to defense counsel that “[the deputy] said 

to the woman she couldn’t leave. As said by [the prosecutor], 

that’s not the question. [T]he question is [whether] the 

defendant [was] told he couldn’t leave.” This formulation is 

overly narrow. The question is not whether Tacardon was “told 

he couldn’t leave” but whether the totality of the circumstances 

reasonably conveyed to Tacardon he was compelled to remain. 

The magistrate further observed that “there certainly was a 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

28

point at which the defendant wasn’t free to go, but that still 

would not preclude it being characterized as a contact.” The 

observation overlooks the principle that a consensual encounter 

can evolve into a detention, and suggests the magistrate did not 

resolve the critical question of the point at which a detention 

occurred. The magistrate never made an express factual finding 

as to whether Tacardon was aware of Grubb’s interaction with 

the passenger. Its endorsement of the prosecutor’s argument 

indicates it did not make an implied finding either.

Because an individual may be detained as a result of a 

police officer’s directives to another person (Brendlin, supra, 551 

U.S. at p. 260), the magistrate erred by failing to consider 

whether the deputy’s interaction with Tacardon’s passenger, 

together with all the other relevant circumstances, effected a 

detention of Tacardon as well. Although we independently 

determine whether the defendant was detained as a matter of 

law, we rely on the magistrate’s factual findings. We normally 

imply in favor of the magistrate’s order every finding that is 

supported by the evidence, but this rule “operates only where it 

can be presumed that the court has performed its function of 

weighing the evidence. If analysis of the record suggests the 

contrary, the rule should not be invoked.” (Estate of Larson

(1980) 106 Cal.App.3d 560, 567.) Because the record 

affirmatively shows the magistrate did not consider whether 

Tacardon was aware of the deputy’s interaction with his 

passenger, the Court of Appeal was wrong to presume the 

magistrate considered the issue and resolved it against 

Tacardon. Instead, the record shows the magistrate made no 

finding at all on that question. (See In re Edgerrin J. (2020) 57 

Cal.App.5th 752, 769.)
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

29

Under the circumstances here, we cannot resolve this 

factual question in the first instance. “As the finder of fact in a 

proceeding to suppress evidence [citation], the superior court is 

vested with the power to judge the credibility of the witnesses, 

resolve any conflicts in the testimony, weigh the evidence and 

draw factual inferences in deciding whether a search is 

constitutionally unreasonable.” (People v. Woods (1999) 21 

Cal.4th 668, 673.) We cannot displace the magistrate as the 

trier of fact unless the evidence is susceptible to only one 

reasonable interpretation. (Cf. Brown, supra, 61 Cal.4th at p. 

980.) 

Here, unlike Brown, the record supports conflicting 

inferences on the issue of Tacardon’s awareness. Tacardon did 

not testify at the hearing, so any conclusions to be drawn about 

his awareness of the interaction between Grubb and the female 

passenger were necessarily circumstantial. On the one hand, 

Tacardon made eye contact with the deputy as the deputy drove 

by in a marked patrol car. That fact could support an inference 

that Tacardon was also aware of the deputy’s conduct in turning 

around, parking behind Tacardon’s car, shining his spotlight, 

and leaving his patrol car to approach Tacardon on foot. An 

inference could also be drawn that Tacardon was aware his 

passenger had left the car. As for Tacardon’s awareness of the 

events transpiring thereafter, Tacardon’s car was parked on a 

residential street at night, the engine was off, there was no 

evidence the street was busy, and the encounter between the 

deputy and the passenger occurred about five feet behind the 

car. 

On the other hand, the car doors were closed and the front 

windows were only “slightly lowered.” When the deputy 

encountered the passenger, he was far enough away from the 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

30

car that he could not smell marijuana smoke coming from the 

windows. He spoke to the passenger in a moderate voice and 

did not draw a weapon. Tacardon was reclined in the driver’s 

seat and wore a hoodie that covered his head. There was smoke 

in the car and the car’s rear windows were tinted. All of these 

things may have affected Tacardon’s ability to see and hear 

what was going on behind the car. And the occupants were 

using marijuana, which may have affected their degree of 

attention. There is no evidence Tacardon asked why the deputy 

had detained the passenger or otherwise signaled to the deputy 

that he was aware of that circumstance. 

On this record, we cannot say there is only one reasonable 

inference to be drawn from the facts. Accordingly, we find it 

appropriate to remand the matter for a new factual finding as to 

whether Tacardon was aware of the woman’s detention and to 

assess whether Tacardon was detained under the totality of the 

circumstances. (See People v. Jenkins (2004) 119 Cal.App.4th 

368, 374; see also Bostick, supra, 501 U.S. at p. 437.)3

3 Having concluded that Tacardon’s detention was 

supported by reasonable suspicion, the Court of Appeal found it 

unnecessary to address the Attorney General’s other argument 

that discovery of Tacardon’s probation search condition was an 

intervening circumstance that removed the taint of an otherwise 

illegal detention. (Tacardon, supra, 53 Cal.App.5th at p. 97, fn. 

5.) A similar issue is pending before us in People v. McWilliams, 

review granted June 30, 2021, S268320, which involves 

discovery of a parole search condition. In this case, the Attorney 

General did not raise the issue in an answer to Tacardon’s 

petition for review, and neither party has briefed it. Moreover, 

the question is premature given our remand for further factual 

findings necessary to determine when Tacardon was detained. 
PEOPLE v. TACARDON

Opinion of the Court by Corrigan, J.

31

III. DISPOSITION

The judgment of the Court of Appeal is reversed and the 

case is remanded for further proceedings consistent with this 

opinion.

CORRIGAN, J.

We Concur: 

CANTIL-SAKAUYE, C. J.

KRUGER, J.

JENKINS, J.

GUERRERO, J.
1

PEOPLE v. TACARDON

S264219

Concurring and Dissenting Opinion by Justice Groban

I agree with the majority opinion that we should “remand the 

matter for a new factual finding as to whether Tacardon was aware of 

the [passenger’s] detention and to assess whether Tacardon was 

detained under the totality of the circumstances.” (Maj. opn., ante, at 

p. 30.) However, the opinion further concludes that “Tacardon was 

not detained when Deputy Grubb parked behind the BMW, shined a 

spotlight on it, and began to approach on foot.” (Maj. opn., ante, at 

p. 15.) Conversely, the dissenting opinion concludes defendant Leon 

William Tacardon was detained at this point in the interaction 

without reasonable suspicion in violation of the Fourth Amendment. 

(Dis. opn., post, at pp. 1–2.) As to this issue, I would take a different 

approach from both the majority opinion and the dissenting opinion. 

As both the majority and dissent recognize, the shining of a 

police spotlight on a suspect can contribute to the coerciveness of the 

encounter and is a factor that must be considered as part of the 

relevant totality of circumstances inquiry. (Maj. opn., ante, at pp. 1, 

6, 14–16; dis. opn., post, at pp. 3, 7–8.) I think it is a close question 

whether Tacardon was detained when Deputy Grubb made a U-turn, 

parked behind his car, shined a spotlight on it, and began to approach 

on foot. But we do not need to reach this question. We are already 

remanding for the superior court to determine whether these facts, 

plus Tacardon’s possible awareness of his passenger’s detention, 

constituted a detention of Tacardon. I would therefore let the superior 

court assess the totality of relevant facts rather than have this court 

make a determination now with respect to only some of them. 
PEOPLE v. TACARDON

Groban, J., concurring and dissenting

2

GROBAN, J.
1

PEOPLE v. TACARDON

S264219

Dissenting Opinion by Justice Liu

As today’s opinion recounts, Sheriff’s Deputy Joel Grubb 

was patrolling a residential neighborhood at night in a marked 

car and “had both his headlights and high beams on for ‘extra 

visibility.’ He drove past a BMW legally parked in front of a 

residence, in the vicinity of a streetlight. The car’s engine and 

headlights were off; smoke emanated from slightly open 

windows. He saw three people inside and made eye contact with 

the occupants as he drove past them. Grubb made a U-turn, 

parked about 15 to 20 feet behind the BMW, and turned on his 

spotlight. He did not activate his siren or emergency lights or 

issue any commands to the car’s occupants. He sat in his patrol 

car for 15 to 20 seconds while he informed dispatch of his 

location. He then approached the BMW at a walking pace. He 

did not draw a weapon.” (Maj. opn., ante, at pp. 1–2.) There is 

more to the encounter (id. at pp. 2–3), but my disagreement with 

the court centers on these facts.

The court concludes that at this point in the interaction, 

defendant Leon William Tacardon, who was in the driver’s seat 

of the BMW, was not detained within the meaning of the Fourth 

Amendment because a reasonable person in his position would 

have believed he was free to leave or otherwise terminate the 

encounter with Deputy Grubb. (Maj. opn., ante, at pp. 15–16, 

19–20.) In my view, this conclusion does not accord with 

“[c]ommon sense.” (Wilson v. Superior Court (1983) 34 Cal.3d 

777, 790.) An “ordinary citizen” in Tacardon’s position “would 
PEOPLE v. TACARDON

Liu, J., dissenting

2

not feel at liberty to simply walk [or drive] away from the 

officer.” (Ibid.) I certainly wouldn’t, and I suspect readers of 

today’s opinion wouldn’t either. On the facts above, I would hold 

that Tacardon was detained without reasonable suspicion in 

violation of the Fourth Amendment and that the judgment of 

the Court of Appeal must be reversed and the information 

dismissed.

I.

The resolution of this case is straightforward under the 

reasoning of People v. Kidd (2019) 36 Cal.App.5th 12 (Kidd), a 

case with similar facts. In Kidd, an officer in a patrol car saw 

two men parked on a residential street at 1:30 a.m. (Id. at p. 15.) 

“The officer passed the car, made a U-turn, and parked about 10 

feet behind the car”; he “pointed two spotlights . . . at the 

occupied car, and then exited his patrol vehicle.” (Ibid.) As he 

approached the car, he smelled marijuana and, upon reaching 

the driver’s side window, “shined his flashlight in the car and 

asked the occupants what they were doing. Kidd was in the 

driver’s seat.” (Ibid.) The officer observed the passenger 

attempting to hide bags of suspected marijuana and asked if 

either man was on probation or parole. (Ibid.) After Kidd said 

he was on probation, the officer ordered the men out of the car 

and found drugs and a gun inside the car. (Id. at pp. 15–16.)

“Taking into account the totality of the circumstances,” 

the Court of Appeal explained that “Kidd was detained when the 

officer made a U-turn to pull in behind him and trained 

spotlights on his car. The officer did not block Kidd’s car in, and 

he did not illuminate his colored emergency lights, so as to 

unambiguously signal a detention. Nevertheless, motorists are 

trained to yield immediately when a law enforcement vehicle 
PEOPLE v. TACARDON

Liu, J., dissenting

3

pulls in behind them and turns on its lights. Regardless of the 

color of the lights the officer turned on, a reasonable person in 

Kidd’s circumstances ‘would expect that if he drove off, the 

officer would respond by following with red light on and siren 

sounding . . . .’ [Citation.] Moreover, any ambiguity was 

removed when the officer more or less immediately exited his 

patrol vehicle and began to approach Kidd’s car. Although the 

officer’s approach was . . . not made in a particularly aggressive 

or intimidating manner, a reasonable person in Kidd’s 

circumstances would not have felt free to leave.” (Kidd, supra, 

36 Cal.App.5th at pp. 21–22.)

Today’s opinion rejects this commonsense conclusion and 

says that a police officer’s “use of a spotlight, standing alone, 

does not necessarily effect a detention.” (Maj. opn., ante, at 

p. 15.) But Kidd’s reasoning is consistent with that proposition. 

(See Kidd, supra, 36 Cal.App.5th at p. 21 [“Without more, a law 

enforcement officer shining a spotlight on a person does not 

constitute a detention.”].) The disagreement here concerns what 

significance a court should assign to the use of a spotlight in 

considering whether the totality of circumstances of a nighttime 

police encounter amounts to a detention.

Today’s opinion relies on cases involving spotlights where 

the Courts of Appeal and federal and sister-state courts have 

held that no detention occurred. (Maj. opn., ante, at pp. 9–11.) 

But those cases are not binding on us, and the fact that Kidd is 

in the minority does not diminish the soundness of its reasoning. 

(Cf. Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315, 

331 [adopting minority position even though “[a] greater 

number of cases . . . have taken the opposite view”]; Vandenberg 

v. Superior Court (1999) 21 Cal.4th 815, 834 [adopting Court of 

Appeal position even though “most other courts addressing the 
PEOPLE v. TACARDON

Liu, J., dissenting

4

issue . . . have taken a contrary approach”]; People v. 

Scott (1994) 9 Cal.4th 331, 353 & fn. 16 [adhering to “th[e] 

minority view” while “recogniz[ing] that the weight of authority 

is otherwise”].)

In reaching today’s holding, the court contends that 

although activation of red and blue emergency lights “typically 

conveys a command to stop,” “the use of a spotlight generally 

conveys a different meaning to a reasonable person . . . .” (Maj. 

opn., ante, at p. 13.) Because “[a] spotlight can be used to 

illuminate the surrounding area for safety or other purposes 

unrelated to the projection of authority” (id. at pp. 13–14), the 

court “believe[s] a reasonable person would distinguish between 

a spotlight and red and blue emergency lights in considering 

whether the person was free to leave” (id. at pp. 14–15; see id. 

at p. 13 [“[A] reasonable person would understand that 

spotlights can have a practical function that differs from the 

essentially communicative function of emergency lights.”]).

I imagine this conclusion comes as news to anyone who 

has ever had their car illuminated by a police spotlight. The 

court apparently envisions that a reasonable person in 

Tacardon’s circumstances would think, “Oh, the officer who just 

eyeballed me, made a U-turn, pulled up behind me in his patrol 

car, pointed a bright spotlight at my car, got out of his car, and 

is now walking toward me isn’t trying to stop me. He just turned 

on his spotlight to see what’s going on. Good thing he didn’t turn 

on his emergency lights . . . looks like I’m free to leave.” This 

strains credulity. The spotlight, whatever its “practical 

function” (maj. opn., ante, at p. 13), contributes to the officer’s 

show of authority. No reasonable person would feel free to leave 

in such circumstances. A reasonable person would instead 

submit to the officer’s approach and stay put.
PEOPLE v. TACARDON

Liu, J., dissenting

5

In this case, Deputy Grubb may well have “used the 

spotlight as a matter of course” (maj. opn., ante, at p. 16) for 

“purposes unrelated to the projection of authority” (id. at p. 14). 

And it is reasonable to believe that using a spotlight in dark 

conditions “might help both the officer and the civilian see what 

the other is doing and make decisions accordingly.” (Ibid.) “The 

ultimate question, however, is not the abstract reasonableness 

of the officer’s actions” or the purposes behind those actions “but 

rather the effect of the cumulative show of authority on a 

reasonable person’s assessment of whether they are free to 

terminate the encounter with law enforcement.” (People v. 

Kasrawi (2021) 65 Cal.App.5th 751, 758–759.) Even if it is 

reasonable for an officer to use a spotlight for illumination 

during a nighttime encounter with a parked motorist, the 

question is what the motorist would reasonably believe when 

confronted with the officer’s actions. And it is evident from 

ordinary experience that “an officer’s show of authority is 

usually bolstered by a spotlight — even if it is used primarily for 

safety purposes . . . .” (Id. at p. 760.)

Here, Deputy Grubb did not use his spotlight to illuminate 

a general area for investigation. Instead, he pointed the 

spotlight at Tacardon’s parked car after making eye contact with 

its occupants, making a U-turn, and pulling up behind the car. 

A reasonable person would have concluded that the officer 

activated the spotlight and trained it on the car as part of a 

series of targeted actions to detain the car and its occupants. 

The court says that “[w]hile a reasonable person in Tacardon’s 

position might ‘feel himself the object of official scrutiny, such 

directed scrutiny does not amount to a detention.’ ” (Maj. opn., 

ante, at p. 20.) To be sure, “[p]olice officers are as free as any 

other citizen to knock on someone’s door and ask to talk with 
PEOPLE v. TACARDON

Liu, J., dissenting

6

them, to approach citizens on the street or in their cars and to 

ask for information or their cooperation.” (State v. GarciaCantu (Tex.Crim.App. 2008) 253 S.W.3d 236, 243 (GarciaCantu).) But it is equally true that such scrutiny can amount to 

a detention in certain circumstances. The question is whether 

a reasonable person would feel free to leave or terminate the 

encounter, and the fact that activation of a spotlight causes a 

person to “ ‘feel himself the object of official scrutiny’ ” (maj. 

opn., ante, at p. 20) is probative, even if not dispositive.

Today’s opinion says, “There was no evidence [the 

spotlight] was unusually bright or flashing, or that Tacardon 

was blinded or overwhelmed by the light. Certainly, a 

reasonable person would notice the deputy’s use of a spotlight, 

and depending on how it is used, a spotlight may contribute to 

the coerciveness of a police encounter.” (Maj. opn., ante, at 

p. 16.) But the fact that a spotlight has a disorienting effect that 

augments a police officer’s show of authority and the 

coerciveness of the encounter is a matter of common experience 

to civilians and officers alike. (See Santos, Making Nighttime 

Traffic Stops (June 20, 2012) Police Magazine [instructing police 

to “[u]se your high beams, spotlights, and takedowns” to 

“creat[e] a ‘Wall of Light’ that will overwhelm the occupants of 

the subject vehicle with intense light”]; Rayburn, Advanced 

Vehicle Stop Tactics: Skills for Today’s Survival Conscious 

Officer (2010) p. 4 [instructing officers that “[t]he spotlight will 

make it difficult for the operator of the vehicle to see”].)

Further, it does not matter whether an officer is 

“attempting to blind the driver” (maj. opn., ante, at p. 15) or 

whether, in Deputy Grubb’s view, the spotlight’s “use in this 

circumstance was disorienting” or “whether he had been trained 

to use his spotlight in that fashion” (id. at p. 16). What matters 
PEOPLE v. TACARDON

Liu, J., dissenting

7

is the effect, which courts routinely infer from the totality of the 

circumstances. (See U.S. v. Delaney (D.C. Cir. 2020) 955 F.3d 

1077, 1083 [shining a police “cruiser’s take-down light” into a 

stopped car from behind “ ‘provide[s] protection for an officer by 

blinding and disorienting the car’s occupants if they look back 

at the squad car’ ”]; U.S. v. Sigmond-Ballesteros (9th Cir. 2002)

285 F.3d 1117, 1123 [“The sudden introduction of a light source 

into the driver’s compartment of a vehicle, while the vehicle is 

operated at night, can be disruptive and can lead to a decrease 

in visibility, if not temporary blindness.”]; Garcia-Cantu, supra,

253 S.W.3d at p. 240 [occupant of a car illuminated from behind 

may be unable to “see anything more except a big spotlight, ‘a 

big white light’ ”].)

To be clear, I do not urge a per se rule that “any person 

who is aware of police scrutiny and is then illuminated by a 

spotlight is necessarily detained.” (Maj. opn., ante, at p. 19; see 

Garcia-Cantu, supra, 253 S.W.3d at p. 244 [“per se rules 

generally do not determine whether any specific citizen-police 

encounter amounted to a Fourth Amendment detention”; courts 

must examine the totality of the circumstances].) And I agree 

that relevant circumstances may include whether the officer 

stopped a moving vehicle, blocked a person from driving away, 

gave instructions by loudspeaker, approached aggressively, 

used a commanding tone of voice, or drew a weapon. (Maj. opn., 

ante, at pp. 6, 15–16.) My objection is to the court’s conclusion 

that Deputy Grubb’s use of a spotlight to illuminate Tacardon’s 

car lacked “coercive force” that informed whether a reasonable 

person would have felt free to terminate the encounter. (Id. at 

p. 16.) I would hold that shining a police spotlight to illuminate 

a parked car on a residential street contributes to the 

coerciveness of the encounter in the circumstances here, where 
PEOPLE v. TACARDON

Liu, J., dissenting

8

it was preceded by an officer on patrol making eye contact with 

the car’s occupants, making a U-turn, and pulling up behind the 

car, and then followed a few seconds later by the officer getting 

out of his patrol vehicle and approaching the car.

II.

Although I acknowledge there is case law that supports 

today’s holding (maj. opn., ante, at pp. 9–11), it must also be 

acknowledged that judicial application of the “free to leave” 

standard has long been criticized for having “an air of unreality” 

and for lacking “common . . . understanding” of how civilians 

experience encounters with the police. (United States v. Drayton 

(2002) 536 U.S. 194, 208, 210 (dis. opn. of Souter, J.); see State 

v. Fogg (Iowa 2019) 936 N.W.2d 664, 675–677 (dis. opn. of Appel, 

J.) [citing criticism by justices of the United States Supreme 

Court, lower court judges, and scholars]; Sundby, The Rugged

Individual’s Guide to the Fourth Amendment: How the Court’s

Idealized Citizen Shapes, Influences, and Excludes the Exercise

of Constitutional Rights (2018) 65 UCLA L.Rev. 690, 718, 721 

(Sundby) [4th Amend. jurisprudence has a “tone of 

obliviousness” and “does not accord with reality”]; 

LaFave, Pinguitudinous Police, Pachydermatous Prey: Whence

Fourth Amendment “Seizures”? (1991) 1991 U. Ill. L.Rev. 729, 

739–740 [“[T]he Court finds a perceived freedom to depart in 

circumstances when only the most thick-skinned of suspects 

would think such a choice was open to them.”].)

To say that a person in Tacardon’s position was 

experiencing a “consensual contact” with Deputy Grubb (maj. 

opn., ante, at p. 19) is to proffer a rather sanguine and 

empirically dubious view of police-citizen interactions. 

(Kessler, Free to Leave? An Empirical Look at the Fourth
PEOPLE v. TACARDON

Liu, J., dissenting

9

Amendment’s Seizure Standard (2009) 99 J. Crim. L. &

Criminology 51, 62 [“[T]here is a wealth of evidence from 

psychological studies suggesting that people rarely comply 

freely with requests from police officers.”]; see, e.g., Sommers &

Bohns, The Voluntariness of Voluntary Consent: Consent

Searches and the Psychology of Compliance (2019) 128 Yale L.J.

1962; Smith et al., Testing Judicial Assumptions of the

“Consensual” Encounter: An Experimental Study (2013) 14 Fla.

Coastal L.Rev. 285; Lichtenberg, Miranda in Ohio: The Effects

of Robinette on the “Voluntary” Waiver of Fourth Amendment

Rights (2001) 44 How. L.J. 349.)

Professor LaFave, while recognizing the “ ‘moral and 

instinctive pressures to cooperate’ ” with the police, has said: 

“[T]he confrontation is a seizure only if the officer adds to those 

inherent pressures by engaging in conduct significantly beyond 

that accepted in social intercourse. The critical factor is whether 

the policeman, even if making inquiries a private citizen would 

not, has otherwise conducted himself in a manner which would 

be perceived as a nonoffensive contact if it occurred between two 

ordinary citizens.” (4 LaFave, Search and Seizure (6th ed. 2022)

§ 9.4(a), fns. omitted.) Singling out a parked car and training a 

powerful spotlight on it from behind, as Deputy Grubb did here, 

is “conduct significantly beyond” any sort of “nonoffensive 

contact . . . between two ordinary citizens.” (Ibid.; see Veh. 

Code, § 24409, subd. (b) [prohibiting use of high beams 

“[w]henever the driver of a vehicle follows another vehicle

within 300 feet to the rear”].)

As the court suggests, Fourth Amendment doctrine on 

police use of spotlights is significantly animated by safety 

concerns. (Maj. opn., ante, at pp. 13–14; see U.S. v. Tanguay

(1st Cir. 2019) 918 F.3d 1, 7–8.) Yet one might wonder whether 
PEOPLE v. TACARDON

Liu, J., dissenting

10

today’s opinion creates new safety issues for both officers and 

civilians. By holding that Tacardon was not detained at the 

point when Deputy Grubb had activated his spotlight and began 

to approach on foot, the court contemplates that a person in 

Tacardon’s position may simply drive away without warning —

even if an officer is walking toward the car and even if a 

passenger, desiring to leave the encounter, is exiting the car. 

Such a scenario would not promote the safety of either officers

or civilians.

The fact is that notwithstanding today’s decision, 

reasonable persons in Tacardon’s position will not drive away 

because they will not feel free to leave. A more realistic 

statement of today’s holding is that even though the use of a 

spotlight will often contribute to the coerciveness of a nighttime 

encounter, this circumstance simply does not outweigh safety 

concerns in the Fourth Amendment analysis. A carveout for 

spotlights would arguably put officers on the same footing, day 

or night, with regard to investigatory activities like approaching 

a parked car.

Yet there is no policy or principle of which I am aware that 

says the police must have the same latitude for conducting 

investigation during the night as during the day. To the 

contrary, California law distinguishes between daytime and 

nighttime intrusions by police. (See Pen. Code, § 840 [“An arrest 

for the commission of a misdemeanor or an infraction cannot be 

made between the hours of 10 o’clock p.m. of any day and 6 

o’clock a.m. of the succeeding day, unless” certain criteria are 

met]; id., § 1533 [requiring showing of good cause before 

magistrate may approve service of search warrant between 

10:00 p.m. and 7:00 a.m.]; Tuttle v. Superior Court (1981) 120

Cal.App.3d 320, 331 [“By adopting Penal Code section 1533, the 
PEOPLE v. TACARDON

Liu, J., dissenting

11

Legislature has clearly taken note that there is a special threat 

to privacy presented by nighttime police intrusions.”].) 

Moreover, courts have refused to credit darkness as an excuse 

for police intrusions conducted without reasonable suspicion. 

(See, e.g., U.S. v. Wilson (4th Cir. 2000) 205 F.3d 720, 723–724

[vacating conviction stemming from vehicle pullover conducted 

because officer, due in part to darkness, could not read 

expiration date on vehicle’s registration tag]; U.S. v.

McLemore (8th Cir. 2018) 887 F.3d 861, 866 [rejecting 

government’s argument that inability to read temporary license 

plate due to darkness justified police stop and affirming 

suppression of evidence].)

Recognizing the coercive effect of spotlights would likely 

limit some nighttime investigations, including ones like Deputy

Grubb’s that turn up contraband. However, for every 

suspicionless stop that uncovers criminal activity, there are 

many others that come up empty. (See Bar-Gill &

Friedman, Taking Warrants Seriously (2012) 106 Nw. U. L.Rev.

1609, 1655 [“police find evidence in only about 10% to 20% of the 

total traffic searches”].) And “it is no secret that people of color 

are disproportionate victims of this type of [suspicionless] 

scrutiny.” (Utah v. Strieff (2016) 579 U.S. 232, 254 (dis. opn. of 

Sotomayor, J.); see Ayres & Borowsky, A Study of Racially

Disparate Outcomes in the Los Angeles Police Department (Oct.

2008) pp. 5–8 [Black and Hispanic residents of Los Angeles, 

compared to Whites, were more likely to be stopped, frisked, 

searched, and arrested but significantly less likely to be found 

with weapons or drugs]; Gross & Barnes, Road Work: Racial

Profiling and Drug Interdiction on the Highway (2002) 101

Mich. L.Rev. 651, 668 [searches of White drivers in Maryland

reveal drugs 22% more often than searches of Black drivers and
PEOPLE v. TACARDON

Liu, J., dissenting

12

over 200% more often than searches of Hispanic drivers]; Note,

Discrimination During Traffic Stops: How an Economic Account

Justifying Racial Profiling Falls Short (2012) 87 N.Y.U. L.Rev.

1025, 1040 [searches of White drivers in Illinois reveal

contraband over 50% more often than searches of non-White

drivers]; cf. Kang et al., Implicit Bias in the Courtroom (2012) 

59 UCLA L.Rev. 1124, 1142 [“the conditions under which 

implicit biases translate most readily into discriminatory 

behavior are when people have wide discretion in making quick 

decisions with little accountability”].)

Moreover, not all individuals feel the same degree of 

freedom to rebuff police advances, even if the law says they are 

free to leave. (See Pierson et al., A large-scale analysis of racial 

disparities in police stops across the United States (July 2020) 4 

Nature Human Behaviour 736, 739 [Black and Hispanic drivers 

are twice as likely as White drivers to undergo search when 

stopped by police]; cf. Utah v. Strieff, supra, 579 U.S. at p. 254 

(dis. opn. of Sotomayor, J.) [“For generations, black and brown 

parents have given their children ‘the talk’ — instructing them 

never to run down the street; always keep your hands where 

they can be seen; do not even think of talking back to a 

stranger — all out of fear of how an officer with a gun will react 

to them.”].) Would a reasonable person in Tacardon’s position 

feel free to drive away from Deputy Grubb or otherwise refuse 

to cooperate? The court’s holding leaves many citizens “ ‘in a 

“Catch-22.” Exercise of citizen rights in the face of police rights 

may cause police to escalate the intrusiveness of the encounter 

and place the citizen at risk of both physical harm and formal 

arrest. Failure to exercise citizen rights by responding to the 

officer, however, may be viewed as consensual conduct removing 

the encounter from Fourth Amendment analysis.’ ” (State v. 
PEOPLE v. TACARDON

Liu, J., dissenting

13

Fogg, supra, 936 N.W.2d at p. 681 (dis. opn. of Appel, J.); see 

Sundby, supra, 65 UCLA L.Rev. at p. 726 [such deprivation of 

constitutional rights “undermines the trust and legitimacy with 

which the justice system is viewed by minority communities”].)

In sum, today’s opinion stretches the concepts of a 

“consensual encounter” and being “free to leave” beyond the 

bounds of common understanding and ordinary experience. I 

fear that the benefits of the court’s decision, which expands the 

investigatory authority of the police, will come at the cost of 

subjecting more law-abiding persons to unwarranted 

surveillance, creating more police-civilian interactions with the 

potential for misunderstanding or escalation, and deepening the 

distrust that some communities have long had toward law 

enforcement.

I respectfully dissent.

LIU, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Tacardon

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 53 Cal.App.5th 89

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S264219

Date Filed: December 29, 2022

__________________________________________________________ 

Court: Superior

County: San Joaquin

Judge: Michael J. Mulvihill, Jr.

__________________________________________________________ 

Counsel:

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler 

and Lance E. Winters, Chief Assistant Attorneys General, Michael P. 

Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Christopher J. Rench, Deputy Attorneys General, for Plaintiff and 

Appellant.

Paul Kleven, under appointment by the Supreme Court, for Defendant 

and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Christopher J. Rench

Deputy Attorney General

1300 I Street

Sacramento, CA 94244-2550

(916) 210-7661

Paul Kleven

Attorney at Law

1604 Solano Avenue

Berkeley, CA 94707

(510) 528-7347