1

Filed 6/13/ 16 P. v. Vasilkov CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTON M. VASILKOV,

Defendant and Appellant. A142806

(San Francisco County
Super. Ct. No. 1404029)

After his motion to suppress was denied, defendant Anton M. Vasilkov pled guilty

to one count of battery causing serious bodily injury (Pen. Code § 243, sub d

. (d)), and

admitted a serious felony allegation. He contends the trial court erred in denying his

motion to suppress because his initial detention was not supported by reasonable

suspicion and that it transformed into a de facto arrest that was not supported by probable

cause. Although we conclude that defendant’s initial detention was proper, his pre

- arrest

transportation to an in

- the

- field identification site constituted an impermissible restraint

on defendant’s personal freedom. Accordingly, we agree that defendant’s Fourth

Amendment rights were violated and we reverse.2 I. BACKGROUND

A. Facts

The following evidence was received at the preliminary hearing. On January 16,

2014, at approximately 3:10 a.m., Dennis Byas was walking alone through Dolores Park

in San Francisco to where his car was parked on 20th Street, when three young men

approache d him. Byas described them all as white or Latino, in their late teens or early

20s, between five foot seven and five foot nine

, medium build, and clean

- shaven. One

man had long, thick, curly hair.

As Byas walked by the group, one of the men tried to “ fist pump” him as a

greeting. Byas kept walking until the three men suddenly surrounded him. The men

started shouting at Byas, grabbed him, pushed him to the ground, and started to go

through his pockets. One stood on Byas’ left side, held a knife again st his throat and he

was told not to move. Another had his hand inside of his pocket and was simulating what

Byas believed to be a gun.

The men demanded that Byas empty his pockets; he complied, relinquishing his

car keys and his eye glasses. Looking f or more items, the group forced Byas onto his

hands and knees so they could search the rest of his pockets. Byas walked toward 18th

Street, t he three men fled on foot in the opposite direction

.

A few minutes later, at about 3:14 a.m., Darryl Bass and J essie Manuel were

sitting on the steps near the bridge leading to Church Street in Dolores Park, with their

friend Patrick who was standing on the nearby train tracks. A man approached them with

a warning that three persons a short distance away were robb ing people. Bass could see a

group of three men heading his way as the other man ran towards Church Street and out

of the park.

One of the men from the approaching group, later identified as co

- defendant,

Julian Prestegui, walked up to Bass to ask for a cigarette. Bass told Prestegui that he was

smoking his last cigarette, but would give Prestegui his current cigarette when he was

finished with it. Prestegui then demanded, “ Give me everything you got.” Bass laughed

in response. One of Prestegui’ s as sociates, later identified as defendant Vasilkov, pulled3

out a knife and asked, “ Do y ou think it’s funny?” Bass replied, “ Yes. I think it’s funny.”

Bass then yelled for his friend Patrick. Defendant said, “ Your niggers can’t help you

right now.” He al so told Bass that he would stab the next person who walk ed up the

stairs. As defendant, Prestegui, and their unidentified associate began to walk away, Bass

and Manuel walked down the stairs towards where their friend Patrick was located,

telling him that they all needed to leave.

As the three friends ran along the train tracks towards Market Street, Bass noticed

that Prestegui was right behind him. Bass elbowed Prestegui in the face and kept

running; however, he stopped when he noticed Manuel had falle n to the ground. Patrick

went ahead to look for help. Bass proceeded to fight Prestegui and the unidentified third

assailant, while defendant held Manual at knifepoint and demanded everything Manuel

had with him. Manuel gave defendant his wallet and pho ne.

Defendant then walked over to where his associates were fighting with Bass and

said, “ Let’s get out of here.” The suspects fled further into Dolores Park.

B. Suppression Hearing

At about 3:14 a.m., on the morning of January 16, 2014, San Francisco Police

Officer Michele Quema, and her partner Officer Joshua, responded to 18th Street and

Church Street in San Francisco on the report of an “A priority robbery.” As one officer

explai ned, “A is the highest priority of a call that we shall respond to. It means,

basically, drop everything that you’re doing because this is the most serious offense.”

As their patrol car approached the intersection of 18th and Church Street bordering

D olores Park, Mr. Byas and two other robbery victims flagged Officers Quema and

Joshua down. Byas told the officers that he had just been robbed by “three Hispanic

males, . . . five feet ten inches tall, with skinny builds, approximately in their 20s,

wea ring dark clothing.” Officer Joshua shortly thereafter broadcast this information over

the dispatch system in order to inform other police units responding to the scene.

At about the same time, San Francisco Police Department Officers Justin Woo and

Dia ne Khuu were also on duty and in uniform, patrolling the Mission District when they

received a dispatch about an “A priority” involving “three Latin males,” who were4

wearing dark clothing. The dispatch indicated that the suspects had fled into Dolores

Par k and that a gun was involved.

Less than two minutes later, Officers Woo and Khuu arrived at the intersection of

Dolores Street and 19th Street, which abuts Dolores Park. The officers got out of the

their patrol car and began a sweep of the park. They had their flashlights lit as they

moved towards the public restrooms located in the middle of the park. Officer Woo was

able to see 100 feet to his left and to his right, including the lights from the nearby

playground. Seeing no one, the officers conti nued to canvass the area until they reached

the public restrooms.

Within one minute of entering the park, the officers found defendant and co

defendant, Prestegui, sitting a distance of five to six feet apart on the stairs on the west

side of the public restrooms. With their weapons drawn, Officers Woo and Khuu,

identified themselves as police officers and directed the men to show their hands.

Defendant and Prestegui complied and did not make any attempt to stand up or walk

away. Officer Woo determined that defendant and Prestegui “generally matched the

description” of the suspects to the extent that they were both males wearing dark clothes,

who “looked Latin.” Prestegui was wearing all black. Defendant was wearing black

jeans, a black shirt, and str iped shirt or jacket; he was also wearing a red baseball hat.

Officer Woo acknowledged that it was not reported that any of the suspects were wearing

a hat.

After placing defendant and Prestegui in handcuffs, Officer Woo conducted a pat

down search of Vasilkov to check for weapons. He saw a black cell phone sticking out of

defendant ’s pocket. Afterwards, Officer Woo noticed several objects in the area where

the suspects had been sitting. These items included a folding knife laying on the steps

within arm’s reach of where Vasilkov had been sitting, and a set of keys atop a brown

jacket

, which was about one foot away from the spot w h ere Prestegui was detained.

Once they were secured, Officer Woo left the suspects with his partner and

another officer, s o that he could accompany some of the robbery victims during a cold

show. About ten minutes after the initial detention, Officer Woo met with three victims5

at the intersection of 18th and Church Streets. The cold shows began approximately five

minutes la ter at a separate location. 1 The police transported defendant and Prestegui in

separate police vehicles to get them to the cold show site. The police also transported the

victims to the cold show site.

Defendant, Prestegui, and at least one other suspect were presented at the cold

shows. At least one of the victims identified defendant or Prestegui as one of the

individuals who had robbed them.

Defendant sought to suppress the items seized from him, particularly the cell

phone, as well as all post

- dete ntion witness identifications, including those during the

cold show. Defense counsel argued there was no reasonable suspicion to detain

defendant because he was not a Latin male and was not wearing dark clothing. (2 RT 75

-

76.) Defendant and his co

- defend ant were not engaged in suspicious conduct, did not try

to flee, and complied with the officers’ demands. Moreover, none of the items found in

the suspects’ vicinity at the time of detention was incriminating. Defense counsel also

argued that the office rs really did not know how many others were present in the park and

whether any of t he suspects had left the park. Defense counsel further asserted that the

transport of defendant and Prestegui to a second location away from the site of their

initial dete ntion was an illegal arrest given there was no probable cause prior to the

identification. Finally, there was no testimony as to when the robberies actually took

place, leaving it unclear whether the suspects “were somehow timely seized in relation to

the actual event . . . .” Thus, the defense maintained there was no reasonable suspicion,

much less probable cause to detain or arrest defendant.

In denying the motion to suppress, the trial court made the following findings:

“The evidence is that the call came in at approximately 3:14. Within minutes, the

officers responded to the specific area where the alleged perpetrators were seen to flee,

which was Delores [ sic ] Park. The officer testified that upon entering the park he and his

partner used flashlig hts to scan the area. The y proceeded from 19th and Delores [ sic ] up

1 It is unclear from the record where the cold shows were actually conducted.6

until the middle of the park to the area of the public restroom using their flashlights to

illuminate the area. [¶] [The officer] testified, without contradiction, that he could see

appro ximately 100 feet in each direction. He also testified that there was streetlights

which illuminated Delores [ sic ] Street. That using both the streetlights and the flashlight,

he and his partner saw only two people. The first and only people they saw in the park

were the two people that they detained. [¶] People’s 2 and 3 depict two individuals, and

based on those photographs, one of them is in what appears to be all back [ sic ], which in

my view is consistent with his testimony that the description was that one of the Latin

males was in dark clothing. The other, from what I can see, is wearing what appears to

[be] black jeans and a black shirt. There is a striped shirt over it, but I certainly see dark

clothing there. [¶] The circumstances were such that the area was not populated by

anyone other than the two individuals; and although the description was that there were

three individuals seen fleeing, two is certainly a subset of three. And under the

circumstances, which was that this was a high priority call, that there was a report that

there was a gun involved with it, that the officers took reasonable steps, first, to simply

detain for purposes of investigating to determine whether or not the two individuals met

the description they had, and that contrary

-- I respectfully disagree with the defendant’s

characterization of what followed. [¶] The victims were in close proximity, albeit not

immediately in the vicinity where the two suspects were detained, and the suspects were

not under arr est, but based upon the facts I heard, they were simply moved for purposes

of further investigation, which was reasonable under the circumstances of the offense that

had occurred at 3:15 in the morning and the circumstances that were described. [¶] I do

find it was reasonable for the officers to undertake the investigation that they did, and it’s

my understanding that upon being displayed to the alleged victims, the individuals were

identified. That was the testimony, and therefore, they were, at that po int, arrested and

taken to the station.”7 II. DISCUSSION

A. Standard of Review and Applicable Law

The rules for review in a 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. ( People v. Soun (1995) 34 Cal.App.4th 1499, 1507 ( Soun ) .) We

then exercise ou r independent judgment to determine if the facts found by the trial court

establish a seizure in violation of the Fourth Amendment. ( Ibid. )

A seizure within the meaning of the Fourth Amendment occurs whenever an

individual’s liberty is restrained by the police, either by physical force or by an assertion

of authority to which the individual submits, in circumstances in which a reasonable

person would have believed he or she was not free to leave. ( Soun, supra, 34

Cal.App.4th at p. 1515.) Although “dete ntions” and “arrests” are both seizures under the

Fourth Amendment, the constitutional standard for permissible detentions “is of lesser

degree than that applicable to an arrest. ” ( People v. Harris (1975) 15 Cal.3d 384, 389

( Harris ) .) An officer is justi fied in detaining a suspect “ ‘if there is an articulable

suspicion that a person has committed or is about to commit a crime.’ ” ( Wilson v.

Superior Court (1983) 34 Cal.3d 777, 784.) On the other hand, probable cause for an

arrest exists only “when the facts known to the arresting officer would lead a person of

ordinary care and prudence to entertain an honest and strong suspicion that the person

arrested is guilty of a crime. [Citations.]” ( People v. Price (1991) 1 Cal.4th 324, 410

,
superseded by stat ute on other grounds as stated in People v. Hinks (1997) 58

Cal.App.4th 1157, 1161

- 1165.)

“[A]n investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop. Similarly, the investigative methods

employed should be the least intrusive means reasonably available to verify or dispel the

officer's suspicion in a short period of time. [Citations.] It is the State’s burden to

demonstrate that the seizure it seeks to justify on the basis of a reasonabl e suspicion was

sufficiently limited in scope and duration to satisfy the conditions of an investigative

seizure.” ( Florida v. Royer (1983) 460 U.S. 491, 500.)8

B. Initial Detention

Defendant contends the police lacked reasonable suspicion to detain him

.
According to defendant, the discrepancies between his appearance and the “ very general

description ” sent out by dispatch significantly undermined the finding that a reasonable

officer in Officer Woo’s position would have had a reasonable suspicion that defendant

was involved in criminal activity.

According to d efendant

, the police lacked reasonable suspicion to detain him

because his race and clothing did not match the “vague” description of the suspects, i.e.

,

three Latin males, wearing dark clothing

. Defendant insists inasmuch as he is “a light

skinned individual of European ancestry,” who was wearing “a distinctive, lighter

colored, stripped sweatshirt,” as well as a hat, Officer Woo lacked reasonable suspicion

to detain him. We disagree.

Office r Woo testified that, although he was not sure of his racial or ethnic

background, defendant “looked Latin .

. . .” The trial court implicitly found that Officer

Woo was a credible witness, and substantial evidence supports its credibility

determination. ( People v. Ramos (2004) 34 Cal.4th 494, 505.)

Moreover, it is undisputed that defendant was wearing black pants and a black

undershirt. That defendant was also wearing a hat and stripped sweatshirt doe s not

controvert these facts. An exact match is not required. ( People v. Craig (1978) 86

Cal.App.3d 905, 911 ( Craig ).) Rather, “a general description has been held sufficient

justification for stopping and questioning persons meeting that description.” ( Craig

,

supra, 86 Cal.App.3d at p. 911 .) In Craig

, police officers were acting on a general

description of three robbery suspects. ( I d. at pp. 910

- 911

. ) There, the victim described

the suspects as follows: “ The first was a male Negro, small Afro, five feet, nine inches

tall, medium build, blue [L]evis. The second, a male Negro, medium Afro, yellow

beanie

- type hat with ‘ Cheerios ’ on the back, and a torn shirt. The third, a male Negro

with a small Afro. When stopped, at least one suspect had pink curlers in his hair. There

was no ‘ Cheerios ’ beanie and no torn shirt.” ( Id. at p. 912, fn. 1.) Despite these

discrepancies, the court held that the officers acted reasonably in stopping and initially9

detaining the defendants. ( Id. at p. 912.) The court reasoned that even though the

defendants “ did not perf

ectly match the general description given, however, since the

descriptions and appearances were substantially the same, and coincided in the

discernable factors (race, sex, build, number), . . . the officers acted reasonably, under the

circumstances .

. . .” ( Id. at pp. 911

- 912. )

In the instant case, neither defendant’s race nor his clothing was an exact match.

Nevertheless, defendant was near the scene of a recently reported crime in the company

of another person matching the age, race, and sex of the f irst described suspect. This

evidence, considered in light of the totality of the circumstances, provided Officer Woo

with “ specific articulable facts” demonstrating “ some objective manifestation” that

appellant was involved in criminal activity at the ti me of his detention. ( People v. Souza

(1994) 9 Cal.4th 224, 231.) While defendant insists that absence of a specific time of the

robberies, together with the discrepancies in his clothing and race demonstrate the lack of

reasonable suspicion, these facts do not diminish the probative value of the other

evidence supporting the trial court’s contrary finding. ( People v. Ramos, supra, 34

Cal.4th at p. 505.) On this record, the officer could reasonably believe criminal activity

involving defendant was afoot , thereby justifying the decision to detain him.

Finally, defendant further insists that even if he appeared to be “Latino,” race

cannot create reasonable suspicion. Defendant asserts that to find otherwise would result

in impermissible racial profiling. He rel ies on In re Tony C. (1978) 21 Cal.3d 888 ( Tony

C. ) and People v. Durazo (2004) 124 Cal.App.4th 728 ( Durazo ). Each , however, is

distinguishable. In Tony C. , t he officers were acting a on a “day

- old burglary report”

when they detained the defendant while he was merely walking along the sidewalk; they

had no particularized basis for suspecting his involvement in any crime, but only “a

combination of hunch and cur iosity.” ( Tony C., supra, 21 Cal.3d at pp. 896

- 898.) But

here, the officers were responding to a police dispatch made a very short time before, and

reasonably believed the persons they found at the scene could have been the persons

described in the dispa tch.10

In Durazo, the officer detained two young Hispanic males merely for apparently

looking toward an apartment complex where four days earlier a resident had claimed

Mexican gang members were going to attack him; as in the prior case, the detained

pers ons did not do anything suggestive of crimi nal activity within the officer’ s view.

( Durazo, supra, 124 Cal.App.4th at p p. 732

- 734 .) Here, the officers responded almost

immediately to a reported robbery involving a gun and found people on the scene who,

ju dging from the initial information given to the officers, looked as though they could

have been involved in that robbery

.
Although reliance on race, without more , amounts to impermissible racial profiling

(Pen. Code, § 13519.4, subds. (d), (e)), here the responding officers were acting on more

than race. Unlike in Tony C. and Durazo , the officers were not acting on a mere hunch

that defendant and his companion were involved in criminal activity. Rather, the officers

immediately responded to a dispatch ca ll regarding an “A priority robbery,” involving a

gun and encountered two Latino appearing men in Dolores Park just after 3:00 a.m.,

wearing similar clothing. The determination of reasonableness in the context of the

Fourth Amendment is “inherently case

- s pecific

. . . . ” ( Durazo, supra, 124 Cal.App.4th at

p. 735.) Under the totality of the circumstances of the instant case, it was objectively

reasonable for the officers to believe that defendant had been involved in possible

criminal activity.

C. Scope of the Detention

We begin by noting that although defendant was handcuffed at the time of the

initial detention and subsequent transportation, that handcuffing did not necessarily

transform the detention into an arrest. ( People v. Celis (2004) 33 Cal.4th 667, 675

( Celis ).) This does not mean, however, that handcuffing a suspect will never transform a

detention into an arrest. The issue is whether the use of handcuffs during a detention was

reasonably necessary under all of the circumstances of th e detention. ( In re Carlos

(1990) 220 Cal.App.3d 372, 385.) We look to “the facts known to the officers in

determining whether their actions went beyond those necessary to effectuate the purpose

of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.”11

( Celis, supra, 33 Cal.4th at pp. 675

- 676.) Here, the officers detained defendant following

a call regarding an “A priority robbery,” which is the most serious type of robbery

dispatch. The officers had reason to believe that more than one suspect was involved and

that a gun had been used during the robberies. Additionally, as it was just past 3:00 a.m.,

it was very dark outside. In short, the evidence suggest s that the officers had a reasonable

basis to believe that def

endant posed a danger to them and that handcuffing him was

necessary to effectuate the purpose of the stop, i.e., to determine whether defendant had

been involved in the reported robberies.

Once the officers decided there were reasonable grounds to detain defendant, they

transported him to an in

- the

- field identification site

. Thus, we must decide if the pre

arrest transportation of defendant to the in

- field identification site was a violation of his

Fourth Amendment rights. In making this deter mina tion, we find the California Supreme

Court’s decision in Harris, supra, 15 Cal.3d 384, instructive. In Harris, as well as here,

“[t]he principal difficulty .

. . arises from the police conduct following the detention when

circumstances known to the police placed the case in that gray area in which the facts

justify measures beyond detention but short of arrest

. . . . [¶] The propriety of .

. . an in

the

- field transportation of suspects prior to arrest poses the principle issue in the case.”

( Harris, sup ra, 15 Cal.3d at pp. 389

- 390.)

Harris went on to explain: “[W]e are disinclined to hold that under no

circumstances short of probable cause to arrest may an officer transport a suspect to

another location for further interrogation or possible identificati on

. . . . [¶] We can

conceive of factual situations in which it might be quite reasonable to transport a suspect

to the crime scene for possible identification

. . . . Similarly, the surrounding

circumstances may reasonably indicate that it would be les s of an intrusion upon the

suspect ’ s rights to convey him speedily a few blocks to the crime scene, permitting the

suspect ’ s early release rather than prolonging unduly the field detention. [¶] Ordinarily

there exist less intrusive and more reasonable al ternatives to pre

- arrest transportation.

The officers may call or escort the witness to the detention scene for an immediate

viewing of the suspect, or if they are able to procure satisfactory identification from the12

suspect, arrangements may be made for a subsequent confrontation with the witness. In

addition, the consent of the suspect may be sought. As

. . . suggested in People v.

Mickelson [(1963)] 59 Cal.2d 448, 454, rather than conduct an illegal car search the

officers could have requested defendant ‘ to accompany the officers the few blocks to the

[crime scene] .

. . for possible identification .

. . . ’ [Citations.]”

The California Supreme Co urt held the transportation and continued interrogation

of the defendant without exploring any other option violated the Fourth Amendment.

( Harris, supra, 15 Cal.3d at p. 391.)

In re Dung T. (1984) 160 Cal.App.3d 697 , 704, involved the investigation into a

home invasion robbery. The perpetrators were identified as six Vietnamese men in their

early twenties , with no further description. ( Id. at p. 705.) The night of the robbery a

witness identified an unoccupied vehicle as one that was used in the robbe ry. ( Ibid. ) The

following night an officer observed the vehicle being driven with eight Vietnamese

youths inside. ( Ibid. ) The vehicle was stopped and the occupants were transported to the

police station where Dung was identified as the driver of the ge taway vehicle. ( Ibid. )

The appellate court reversed on other grounds but held for the guidance of the trial court

that the detentio n violated the Fourth Amendment. ( Id. at pp. 711

- 712.)

In analyzing the Fourth Amendment violation, In re Dung T. explained: “The

record is barren of any attempts by the police to employ methods of investigative

detention less intrusive than immediately transporting appellant and his companions to

the police station for a lineup identification. In fact, [the office r] had standing orders to

bring the car and its occupants to the police station as soon as it was occupied. The car

was under surveillance for at least a day but no attempt was made to ascertain its owner.

No attempt was made to bring witnesses to the de tention scene for an immediate viewing

of the suspects. Upon discovery of the Dodge the previous evening, the police brought

[the witness] to the scene to identify the car. No reason appears for not bringing him to

the scene the following evening to dete rmine if he could identify any of the occupants of

the car. The record discloses no evidence the police attempted to question the suspects,

obtain their identifications or obtain their consent to being transported to the police13

station for a lineup. Only on arrival at the station did the police explain to the suspects

what they were doing. [¶] .

. . [¶]

“The record shows ‘no attempt was made here to employ procedures which might

comply with the requirements of the Fourth Amendment: .

. .’ [Citation.] Th e People

have failed ‘to demonstrate that the seizure it seeks to justify on the basis of a reasonable

suspicion was sufficiently limited in scope and duration to satisfy the conditions of an

investigative seizure.’ [Citation.] They have not shown appella nt ’ s detention was a ‘rare

case’ justifying the magnitude of intrusion involved. Thus, appellant’ s detention violated

the Fourth Amendment and, through the due process clause, the Fourteenth Amendment

of the United States Constitution.” ( In re Dung T., supra, 160 Cal.App.3d at pp. 715

-

716.)

In In re Carlos M

. , supra, 220 Cal.App.3d at pp. 376

- 377, the victim was sexually

assaulted. The defendant was lawfully detained and then transported to the hospital

where the victim was undergoing a sexual assault examination. ( Id. at pp. 382

- 385.) In

rejecting the defendant ’ s claim that the Fourth Amendment was violated , the court

explained, as follows: “We conclude, under the facts of this case, the transportation was

reasonable. Because [the officer] spoke no Spanish, the language barrier prevented him

from attempting to obtain consent. The absence of identification, or even a residential

address, rendered the ‘arrangements for subsequent confrontation’ option moot.

“The only option reasonably available to [ the officer] was to bring the victim and

the suspects together as expeditiously as possible. [The officer] understood that at the

time he wished to arrange an in

- field identification, the victim was undergoing a rape

victim examination. [The officer] (from prior experience) believed this would require

about two hours. Although the victim was not suffering severe physical injuries, she was

presumably ‘unable to be taken promptly to view the suspects’ in light of the trauma she

had endured and the exigencies a rape

- victim examination entails. To bring the victim to

the suspects probably would have required [the officer] to detain them for two hours to

await the completion of the examination, or to interrupt the examination and seek to

transport the victim.14

“T he option selected by [the officer]

— transporting the suspects to the hospital

rather than attempting to transport the witness from the hospital to the location of the

suspects

— was eminently reasonable. Even assuming it would have been possible to

interrup t the hospital examination, time would have been wasted in finding the victim and

causing termination of the examination. Since transportation time in either event would

be the same, the likely detention of the suspects would be less by virtue of the option

selected by [the officer]

— taking the suspects to the witness. [Fns. omitted.]” ( In re

Carlos M., supra, 220 Cal.App.3d at pp. 383

– 384.)

Relying on Celis, supra, 33 Cal.4th 667 and Soun, supra, 34 Cal.App.4th 1499,

the People argue that defendant ’s pre

- arrest transportation did not result in an

impermissible de facto arrest because the officers used the least intrusive means available

under the circumstances. These cases are distinguishable.

The People’s reliance on Celis is misplaced because that case did not involve pre

arrest transportation. Rather, there the defendant, a suspected drug trafficker, was

handcuffed and forced to sit in his yard while the police performed a protective sweep of

his residence. ( Celis, supra, 33 Cal.4th at p. 67 6.) Finding the officers acted diligently

and swiftly, using the least restrictive means reasonably available, the court concluded

the detention did not convert into a de facto arrest. ( Id. at pp. 675

- 676.)

In Soun, supra, 34 Cal.App.4th 1499, the defen dant “ was removed from the car at

gunpoint by a large number of police officers, was forced to lie on the ground, was

handcuffed and placed in a patrol car, was transported from the site of the stop a distance

of three blocks to a parking lot, and then was held at the parking lot for up to an

additional thirty minutes, all without being told why he had been stopped or being

permitted to communicate with his confederates. ” ( Id. at p. 1517.) The defendant

argued, among other things, that “ even if the initia l stop were regarded as a detention, the

detention evolved into a de facto arrest when the individuals, seated in separate police

cars, were moved three blocks to a parking lot that was known to police and had

apparently been used by them, as an assembly a rea, on previous occasions. ” ( Id. at

p. 1519.) In rejecting the defendant’s claim, the court found three

- block transportation15

did not elevate the detention to an arrest because the reasons offered for moving the

suspects were “wholly consistent with the known circumstances and with common

sense.” ( Id. at p.1520.) In Soun , one of the responding officers explained that they had

been “ ‘ directed .

. . to move to an assembly point because we were blocking the roadway

and there [were] so many cars. [¶] .

. . [¶] It was typical procedure. [¶] .

. . [¶] It had

nothing to do with the arrest situation. It was merely for officer ’ s safety and to clear the

roadway. ’ ” ( Ibid .) As such the court concluded that “[a] three

- block transportation to an

essentially neutral site for these rational purposes did not operate to elevate Soun’s

custodial status from detention to arrest.” ( Ibid. )

Here, unlike in Soun , the record is devoid of any rational explanation for

transporting defendant to the in

- the

- field identific ation site. No officer was asked, and

none volunteered, any reasons for moving defendant. As in In re Dung T., supra, 160

Cal.App. 3d 697, “[t]he record is barren of any attempts by the police to employ methods

of investigative detention less intrusive th an immediately transporting [defendant] and his

companion[]” ( id. at p. 715) to the in

- the

- field identification site. “No attempt was made

to bring witnesses to the detention scene for an immediate viewing of the suspects.”

( Ibid. ) No reason appears wh y the identification site was preferable to the detention site.

The record also disclosed no evidence that the police attempted to obtain defendant’s

consent before transporting him to the identification site.

“ The record shows ‘no attempt was made here to employ procedures which might

comply with the requirements of the Fourth Amendment:

. . .’ [Citation.] The People

have failed ‘to demonstrate that the seizure it seeks to justify on the basis of a reasonable

suspicion was sufficiently limited in scope and duration to satisfy the conditions of an

investigative seizure.’ [Citation.] They have not shown [defendant’s] detention was a

‘rare case’ justifying the magnitude of intrusion involved. ” ( In re Dung T., supra, 160

Cal.App.3d at pp. 715

- 7 16.)

We can surmise that the officers decided to move both the suspects and the victims

to another location due to safety concerns. However, as a reviewing court, we cannot

speculate as to what the officers might have thought. Rather, it was the prosecution’s16

bu rden to introduce evidence to establish that the investigative detention was sufficiently

limited in scope. ( Florida v. Royer, supra, 460 U.S. at 500.) This they did not do.

Thus, [defendant’s] detention violated the Fourth Amendment and, through the

du e process clause, the Fourteenth Amendment of the United States Constitution.” ( In re

Dung T., supra, 160 Cal.App.3d at p. 7 16.) Accordingly, the trial court erred in denying

the motion to suppress. 2

III. DISPOSITION

The judgment is reversed and the cause remanded to the superior court. The trial

court is directed to vacate its order denying the motion to suppress and enter a new order

granting the motion. The trial court is directed to vacate the guilty plea if defe ndant

makes an appropriate motion within 30 days after the remittitur is issued. In that event,

the superior court should reinstate the original charges and allegations contained in the

information if the prosecution so moves. If defendant does not move to vacate the plea,

the trial court is directed to reinstate the original judgment.

2 While the field identification should be suppressed, subsequent identifications of
defendant need not be suppressed if the witnesses have an independent recollection of the

crime. ( People v. Rodriguez (1993) 21 Cal.App.4th 232, 241.)17 _________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Streeter, J