Defendant was detained without reasonable suspicion where an officer pulled in behind the defendant’s car, which was stopped on the side of a residential street with its fog lights on, and pointed spotlights at the car. In the wee hours of the morning, an officer saw a car parked on a residential street with its amber fog lights on. Wanting to see what the two people inside the car were doing, the officer pulled in behind them, pointed his spotlights at their car, and exited his vehicle. As he approached the car, the officer smelled marijuana. After defendant (the driver) indicated he was on probation and there was a gun in the car, the officer searched the car and found contraband. Defendant was charged with several felony offenses, but the trial court granted defendant’s motion to set aside the information and all charges were dismissed. The People appealed. Held: Affirmed. An encounter between a law enforcement officer and a defendant is a detention if, under the totality of the circumstances, a reasonable person in the defendant’s position would not feel free to leave. Here, Kidd was detained when the officer pulled in behind Kidd and trained the spotlights on Kidd’s car. Although the officer did not turn on his colored emergency lights, motorists are trained to immediately yield when a police car pulls in behind them and turns its lights on. A reasonable person in this situation would expect that if he drove off, the officer would respond by pursuing him with the siren activated, and the fact that the officer immediately got out of the car and started to approach Kidd removed any ambiguity about whether it was a detention. The detention was unjustified because the officer did not have reasonable articulable suspicion Kidd committed or was about to commit a crime. It is not illegal for a parked car to use fog lamps without headlamps and, by his own admission, the officer did not observe any wrongdoing. Although there was no indication of bad faith, the officer’s detention of Kidd in the absence of reasonable suspicion was deliberate, warranting suppression of the evidence.

Defendant was not barred from raising the suppression issue in a Penal Code section 995 motion, notwithstanding the fact that he had already raised the same suppression issue in an unsuccessful section 1538.5, subdivision (i) motion before a different superior court judge. The People argued that Kidd should not have been permitted to relitigate his suppression issue through a section 995 motion because he had already raised the same issue in two unsuccessful suppression motions under section 1538.5, first at the preliminary hearing and then after his arraignment on the information. The court disagreed. Prior to the enactment of section 1538.5, a defendant could challenge the admissibility of evidence obtained by a warrantless search and seizure through a nonstatutory motion to suppress, or a section 995 motion to set aside the information. When the Legislature enacted section 1538.5, setting forth rules governing suppression motions, it left the procedures for filing a section 995 motion intact. Thus, a defendant seeking to avoid the use of evidence obtained by unreasonable search and seizure may (1) move to set aside the information under section 995, (2) move to suppress the evidence under section 1538.5, or (3) do both. Although section 1538.5, subdivision (i) contains language limiting review of an issue after a special hearing to writ of mandate or prohibition, this only prevents a defendant from raising another section 1538.5 motion. It does not prohibit a defendant from raising the same substantive issue through a different procedural mechanism. Nor does it matter that the judge who granted defendant’s section 995 motion was not the same judge who denied defendant’s section 1538.5, subdivision (i) motion. The judge who granted the section 995 motion was not overruling the decision of the judge who denied the section 1538.5 motion; rather, both judges were reviewing the magistrate’s ruling at the preliminary hearing, in the context of parallel but separate statutory procedures.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E070996.PDF