PEOPLE v. LETNER AND TOBIN

Appellant's motion to file belated brief is granted. Brief filed this date.

WERDEGAR, J., Concurring and Dissenting. —

Late in the night of March 1, 1988, a red-and-white Ford Fairmont speckled with rain traveled through deserted downtown Visalia. Officer Alan Wightman of the Visalia Police Department, aware of recent auto thefts in the area, saw the car and had a hunch the driver was involved in some illegality, so he followed it. Wightman confirmed by radio that the car had not been reported stolen. Still suspicious, he imagined that the driver might be under the influence of drugs or alcohol and, like a properly trained peace officer, followed the car but observed no violations of the traffic laws common to such offenders, nor did he see either the driver or the passenger imbibe an alcoholic beverage. The car eventually left the downtown area and entered the freeway, whereupon Officer Wightman observed that it was traveling 40 miles per hour on a stretch of highway where the speed limit was 55. At that point Wightman effected a traffic stop; briefly detained and questioned the driver and passenger, defendants Richard Lacy Letner and Christopher Allan Tobin; and conducted a quick visual scan of the car's interior and trunk. Several hours later, after the discovery of Ivon Pontbriant's murder, police located the car and searched it, finding additional evidence.

As fully explained by Justice Kennard, Officer Wightman lacked reasonable cause to believe the driver of the Ford Fairmont had violated any law, and the officer thus had no legally justifiable reason to detain — in effect, seize — defendants. I therefore join that portion of Justice Kennard's dissenting opinion that concludes Officer Wightman's traffic stop and ensuing detention violated defendants' Fourth Amendment rights. (See dis. opn., post, at pp. 217-220.) But as explained below, because I conclude this constitutional violation was harmless beyond a reasonable doubt, it does not require reversal. Accordingly, I concur in the majority's decision to affirm the judgment.

As a general rule, violations of the United States Constitution require reversal of the resulting criminal judgment unless the error can be found harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 87 S.Ct. 824].) This stringent standard of review applies to violations of the Fourth Amendment. ( Bumper v. North Carolina (1968) 391 U.S. 543, 550 [ 20 L.Ed.2d 797, 88 S.Ct. 1788]; People v. Rich (1988) 45 Cal.3d 1036, 1080 [ 248 Cal.Rptr. 510, 755 P.2d 960]; People v. Jasmin (2008) 167 Cal.App.4th 98, 114 [ 84 Cal.Rptr.3d 19].) In this case, the People obtained two categories of evidence from the unjustified traffic stop: evidence obtained during the detention itself, and evidence from a search of the car the next evening. As explained below, the inculpatory power of the evidence gathered as a direct result of the traffic stop was negligible, and its admission was thus harmless. As for the later car search, because defendants had no recognizable possessory interest in the vehicle, they may not challenge the search or object to the admission at trial of the evidence thereby obtained, nor in any event was that evidence of particular significance to the prosecution. Applying Chapman to this case, and recognizing the evidence of defendants' guilt was extensive, I conclude the error in admitting the evidence defendants now challenge as a result of Officer Wightman's traffic stop was harmless beyond a reasonable doubt.

Officer Wightman's decision to stop and detain defendants resulted in the following evidence being admitted against them in their criminal trial: (a) Wightman's discovery of a common buck knife when he conducted a patsearch of defendant Letner (see maj. opn., ante, at p. 119); (b) Wightman's observation of Heineken and Lowenbrau beer bottles in the car ( ibid.); (c) defendants' statements concerning their destination that night; and (d) Wightman's observation and identification of defendants as the driver and passenger of Pontbriant's car just hours after the crimes Because all this evidence came to the People by directly exploiting the traffic stop, a seizure that, as explained in Justice Kennard's dissenting opinion, was unsupported by reasonable cause to believe the driver was in violation of any law (dis. opn., post, at pp. 218-219), the evidence should have been suppressed under the Fourth Amendment to the United States Constitution as "`fruit of the poisonous tree.`" ( Wong Sun v. United States (1963) 371 U.S. 471, 488 [ 9 L.Ed.2d 441, 83 S.Ct. 407]; see People v. Sims (1993) 5 Cal.4th 405, 445 [ 20 Cal.Rptr.2d 537, 853 P.2d 992].) Only if the admission of this evidence can be found harmless beyond a reasonable doubt can we affirm the judgment.

We may quickly discount the first two items for lack of probative value. The type of knife Officer Wightman found in defendant Letner's pocket was not uncommon or unusual and was an otherwise legal implement, nor was the blade matched to the wound suffered by the victim. Moreover, when police experts disassembled the knife and examined its component parts, they found no blood (maj. opn., ante, at p. 125), suggesting that, given the copious amount of blood spilled by the victim due to the severing of her carotid artery, Letner's buck knife was not the murder weapon.

Nor was Officer Wightman's observation of the beer bottles in the car particularly inculpatory. The bottles were of common brands and, although those brands were linked to the murder scene, the evidence of the officer's observations was cumulative to other evidence: police discovered the same bottles in their later search of the car (see, post, at p. 216), and defendant Tobin testified at trial that he had bought both Heineken and Lowenbrau beer and shared it with Letner and the victim on the night she was murdered. Neither Wightman's discovery of Letner's knife nor his observation of the beer bottles could have been significant to the jury's decision.

The People also introduced into evidence certain statements defendants had made during the illegal detention, but none was of particular significance. Officer Wightman testified at trial that Letner told him the Ford Fairmont he was driving belonged to Ivon Pontbriant, that she lived on North Jacob Street, but that he did not know the exact address. But as Wightman testified at the suppression hearing — and presumably could have testified at trial — before he stopped defendants he had already received information via police radio that the car belonged to Pontbriant.

Officer Wightman also testified at trial that at the time of the stop Letner said he was taking Tobin home, whereas Tobin said that Letner was taking him home to Tobin's house on South Crenshaw, where he lived with "Jeanette" (presumably his girlfriend Jeanette Mayberry). Despite the majority's characterization of defendants' statements during this detention as "inconsistent and apparently untruthful" (maj. opn., ante, at p. 143), no inconsistency is apparent and the statements would not have given the jury occasion to believe that defendants were being evasive.

The most inculpatory evidence the People obtained from the unjustified traffic stop was the identity of defendants as the persons driving Pontbriant's car shortly after she was murdered. But considering all the circumstances, as detailed below, this evidence was of little importance in connecting defendants to the murder. An acquaintance of Letner's placed the pair at a bar between 7:30 p.m. and 9:30 p.m. the evening Pontbriant was killed. Tobin also testified he and Letner were at a bar that evening, but left to go to Pontbriant's house. The three of them spent the evening drinking together, and Pontbriant and Letner made phone calls to Edward Burdette and Kathy Coronado. Burdette corroborated that Pontbriant and Letner had called him that night around 8:00 p.m. or later. Forensic experts determined that Pontbriant was killed late that evening. Sometime after midnight, and before making the now challenged traffic stop, Officer Wightman observed two White men driving a red-and-white Ford Fairmont and determined by radio that the car's registered owner was Pontbriant. Setting aside the evidence of the traffic stop, defendants were then seen around 4:00 a.m. that same morning, on foot, at Denise Novotny's home. Apparently without access to a car, they asked if her husband could give them a ride to work, saying it was an emergency. She was acquainted with defendants and recognized them, but told them her husband was out of town. Defendants thereafter fled the city under suspicious circumstances suggestive of guilt. (See People v. Abilez (2007) 41 Cal.4th 472, 521-522 [ 61 Cal.Rptr.3d 526, 161 P.3d 58] [flight logically permits an inference of guilty knowledge].) That evening police found defendants' property in Pontbriant's car. Once in Iowa, defendants confessed to their new employer, Earl Bothwell, that they were wanted for murder in California and had taken a red-and-white Ford from a woman. After being apprehended in Iowa, Letner temporarily escaped law enforcement custody.

In sum, Officer Wightman's discovery of defendant Letner's buck knife, his observation of the beer bottles in the car, and his recounting of defendants' statements, considered singly or together, were not particularly inculpatory or important to the prosecution. Although Wightman's testimony placing defendants in the victim's car shortly after she was killed was, by contrast, undoubtedly useful to the prosecution, this information was presented to the jury by other means as well. Wightman's legal observation of two White men in Pontbriant's car that night, coupled with the later discovery by police of defendants' belongings in the abandoned Ford Fairmont, sufficiently placed defendants in the car at that critical time. Thus, when weighed against the web of other evidence connecting defendants to Pontbriant's murder, the admission of the evidence obtained from Officer Wightman's improper detention of both defendants was harmless beyond a reasonable doubt.

The evening after the traffic stop, police returned to Pontbriant's Ford Fairmont, which was still parked where defendants had left it, and searched it for clues. In the car, police discovered a white rag bearing evidence of blood and some unopened bottles of Heineken and Lowenbrau beer. (Maj. opn., ante, at p. 119.) In the trunk, police found some stolen cosmetic and hair care items identified by witness Jeanette Mayberry as belonging to defendant Letner. ( Id. at p. 121.) Police also found in the trunk a sword and a shotgun that defendant Tobin testified belonged to him. ( Id. at pp. 125-126.) These items were significant evidence that defendants had been in the car and, inferentially, had participated in Pontbriant's murder. Defendants contend the items should have been suppressed as tainted by the initial illegality of the unjustified traffic stop. ( Wong Sun v. United States, supra, 371 U.S. at p. 488.) But because neither defendant owned or legitimately possessed the car in which this evidence was found, they are foreclosed from challenging the legality of the car's search.

"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' [Citations.] A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. [Citation.] And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, [citation], it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections." ( Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [ 58 L.Ed.2d 387, 99 S.Ct. 421].) "[S]ince voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard." ( People v. Camacho (2000) 23 Cal.4th 824, 830 [ 98 Cal.Rptr.2d 232, 3 P.3d 878].) "A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized." ( People v. Jenkins (2000) 22 Cal.4th 900, 972 [ 95 Cal.Rptr.2d 377, 997 P.2d 1044]; see also Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [ 65 L.Ed.2d 633, 100 S.Ct. 2556].)

A person who, with permission, borrows a vehicle from the rightful owner and thereby exercises legitimate control over it for a temporary period of time has a recognizable expectation of privacy in the car. ( People v. Leonard (1987) 197 Cal.App.3d 235, 239 [ 242 Cal.Rptr. 757].) However, "[t]o mount a challenge to a search of a vehicle, defendants must show, among other things, a legitimate basis for being in it, such as permission from the owner. [Citation.] Defendants who do not have a legitimate basis for being in a car that is not registered in the name of any of the car's occupants cannot object to the search of the vehicle." ( U.S. v. Ponce (2d Cir. 1991) 947 F.2d 646, 649.) Here, although Tobin testified that Letner had asked Pontbriant if he could borrow her car (maj. opn., ante, at p. 125), and Officer Wightman testified that Letner told him they had borrowed the car from Pontbriant ( id. at p. 118), Tobin's testimony was self-serving, and both witnesses' statements were hearsay and thus inadmissible for the truth of the matter stated. Walter Gilliland, by contrast, who lived with and was romantically involved with Pontbriant, testified she was protective of her car and rarely allowed anyone to drive it. ( Id. at p. 116.) In the absence of solid evidence Pontbriant had loaned her car to defendants or that they were driving it with her permission, and in light of Gilliland's testimony, I conclude defendants lacked a legitimate expectation of privacy in the car's contents. Consequently, defendants may not challenge the admission of the evidence discovered therein.

But even were we to assume defendants established that Pontbriant had lent them her car and that they at one time had a possessory interest in it sufficient to create a legitimate expectation of privacy in its contents, any such expectation had ceased by the time police searched it. Officer Wightman effected the now challenged traffic stop shortly after midnight. Because Letner did not have a driver's license and Tobin appeared too intoxicated to drive, Officer Wightman instructed defendants to leave the car on the side of the road. Although defendants had ample time to retrieve the car the following day, Wightman recalled seeing the red-and-white Ford Fairmont, still parked where defendants had left it, many hours later at 5:30 p.m. the next evening. (Maj. opn., ante, at p. 119.) Police did not seize the car until around 9:00 p.m. By that time Pontbriant, the car's owner, had been identified as a murder victim and police had determined that she was the owner of the Ford Fairmont. Given the passage of time and indications that defendants had abandoned the car, any temporary possessory interest they may have had in the car the previous night had expired by the time police searched it. (See People v. Smith (1966) 63 Cal.2d 779, 800-801 [ 48 Cal.Rptr. 382, 409 P.2d 222] [no reasonable expectation of privacy in an abandoned rental car]; People v. Shepherd (1994) 23 Cal.App.4th 825, 828-829 [ 28 Cal.Rptr.2d 458] [no expectation of privacy in a purse abandoned in a stolen truck].)

In any event, even were I to conclude defendants could challenge the admission of this evidence, its admission was not particularly damaging. A forensic analysis of the bloody rag could not match the blood definitively to either defendant; the blood was found to be merely consistent with defendant Tobin's blood (maj. opn., ante, at p. 121), as it was also with Gilliland's blood ( ibid.). Because Gilliland cohabitated with the victim and presumably had access to her car, and because the victim's blood was not found on the rag, the persuasive force of the forensic evidence of the bloody rag was negligible, even considering that Tobin had allegedly told fellow inmate Gregory Gerrard he was worried about the discovery of the rag. The diminished probative value of the rag is clear when we compare it to the evidence police found at the murder scene: (a) bloody hairs on the victim's body that matched defendant Letner's hair; (b) blood on a pillowcase (consistent with both defendant Tobin's and Gilliland's blood); (c) a semen stain on the carpet consistent with Tobin's antigenic activity (and inconsistent with Gilliland's) ( ibid.); and (d) strong evidence, including Tobin's own testimony, that both defendants had spent much of the evening with the victim.

Police found a Heineken beer bottle and a Lowenbrau beer bottle cap at the crime scene (maj. opn., ante, at p. 115), lending some significance to the bottles of beer of the same brand police found in the Ford Fairmont when they searched it. But these brands of beer are not particularly distinctive or unusual and, in any event, Tobin testified he had purchased some Heineken and Lowenbrau beer and drank it with the victim the night she was murdered. ( Id. at p. 126.) Accordingly, the evidence from the car was merely cumulative and hence not particularly inculpatory.

The balance of the evidence found by police in Pontbriant's car is of even less importance. Jeanette Mayberry identified the stolen cosmetic and hair care items police found in the trunk as defendant Letner's property but there was little doubt Letner was with the victim the night she was murdered: defendant Tobin so testified, and both Edward Burdette and Kathy Coronado testified that Letner (together with Pontbriant) had made a series of aggressive telephone calls to them on the night in question. This evidence unequivocally places Letner at the victim's home on the night of the murder. Nor was either the sword or the shotgun, found by police in the car's trunk, significant: Tobin testified the items belonged to him ( id. at p. 126), and neither was used in the crimes. Finally, Tobin testified and admitted being with the victim on the night she was killed.

In sum, even were I to conclude defendants were entitled to challenge the warrantless search of Pontbriant's car due to some fleeting possessory interest in it, the evidence found in the car was either of little inculpatory value or cumulative to other evidence. The admission of the evidence from the car was thus harmless beyond a reasonable doubt.

For the reasons stated above, although I agree with Justice Kennard's dissenting opinion that Officer Wightman's traffic stop was not supported by reasonable cause, I concur in the majority's decision to affirm the judgments of conviction.

Moreno, J., concurred.

KENNARD, J., Dissenting. —

In this case, a police officer stopped a car late at night. Because the car was traveling below the posted speed limit, the officer suspected the driver of being intoxicated. The day after the stop, police discovered that the driver and his passenger (the defendants in this case) had been traveling in a car owned by a woman who had been murdered shortly before the stop. The majority upholds the legality of the detention. I disagree.

Around midnight on March 1, 1988, Visalia Police Officer Alan Wightman saw a Ford Fairmont traveling through downtown Visalia. It had rained heavily in that area a couple of hours earlier; parked cars in the area were wet, while many moving vehicles were dry because the drops had blown off. Because the Ford Fairmont's exterior was wet, Officer Wightman suspected it had been parked nearby until recently. In the previous three months, the police had received many reports of vehicle theft and vehicle tampering at approximately 10 used car lots in downtown Visalia. A week earlier, one of the lots, which the officer described as a "used Ford car lot," had reported a car theft. Suspecting that the Ford Fairmont might be stolen, Wightman followed the car as it traveled through town (breaking no laws) and turned onto an on-ramp to State Highway 198, on which no other cars were traveling at the time. A call-in by Wightman soon revealed that the car was owned by a private party, Ivon Pontbriant, and that it had not been reported stolen.

At the point where the car entered State Highway 198, it was a freeway, with a maximum speed limit of 55 miles per hour. But after a very short distance, which Officer Wightman estimated at "a half, three quarters of a mile, closer to a mile maybe," it became a highway with a maximum speed limit of 45 miles per hour. The car traveled at 40 miles per hour on the short stretch of freeway; the officer then stopped the car where the speed limit dropped. He did so primarily because he suspected the driver of being intoxicated, explaining that in his experience intoxicated drivers tend to drive slowly for no apparent reason.

In the car were defendants Richard Lacy Letner (the driver) and Christopher Allan Tobin (the passenger). Letner told Officer Wightman that he had borrowed the car from Ivon Pontbriant; Letner and Tobin, who was drunk, made inconsistent statements regarding their destination. Officer Wightman patted down Letner and found a buck knife in his pants pocket; he also saw an opened beer bottle in plain view in the car. When Letner could not produce a license, Officer Wightman ordered the two defendants to walk home.

The next day, after learning of Pontbriant's murder, police officers searched the car and found, in addition to personal property belonging to both defendants, a rag with blood on it consistent with defendant Tobin's. At Pontbriant's house, the police found beer bottles of the same brand as the opened bottle that Officer Wightman had seen in the car at the time of the stop the previous night.

"[L]aw enforcement agents may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. [Citation.] Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officer's reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion. [Citation.]" ( United States v. Hensley (1985) 469 U.S. 221, 226 [ 83 L.Ed.2d 604, 105 S.Ct. 675].) Here, as explained below, at the time of the car stop Officer Wightman lacked a reasonable suspicion that defendants were involved in criminal activity.

That the car, while being followed by a marked police car, was traveling 15 miles per hour below the maximum speed limit of 55 on State Highway 198, did not give rise to a reasonable suspicion that the driver had stolen the car and was therefore trying to avoid contact with the police: It is not at all unusual for a driver to slow down upon seeing a police car, irrespective of any wrongdoing. Here, the driver did not suddenly slow down when Officer Wightman began following the car. Rather, the driver merely did not accelerate to the maximum speed limit after entering the freeway.

Four reasons come to mind as to why, under the circumstances of this case, a driver might have driven slowly on the freeway. First, if, as Officer Wightman testified, parked cars in downtown Visalia were still wet from a recent heavy rain, it is reasonable to infer that the freeway too was still wet, which would lead most motorists to slow down because of slippery road conditions. Second, it is not at all unusual for drivers not to accelerate to a maximum speed limit when, as here, they can drive at that speed only for just about a mile before a drop of the posted speed limit. If defendant Letner, instead of driving at 40 miles per hour on the freeway, had immediately accelerated to the maximum speed limit of 55 miles per hour after entering the freeway, he could have maintained that speed only for a minute before the speed limit on the stretch that became a highway fell to 45 miles per hour. Third, the stop occurred at midnight; many people drive slower late at night, because of poor visibility. Fourth, Officer Wightman testified that the car's engine was "running rough"; a driver experiencing that problem might fear a mechanical problem and decide not to drive at the maximum posted speed limit.

Although there is no published California decision on the legality of stopping a car simply because it is traveling below the maximum speed limit, courts in other states have concluded that such a stop lacks the requisite reasonable cause to believe that the driver is engaged in criminal activity unless there are other suspicious circumstances. (See Faunce v. State (Fla.Dist.Ct.App. 2004) 884 So.2d 504, 506 ["the fact that the defendant in this case was driving slowly is not alone sufficient to give rise to a reasonable suspicion"]; State v. Brown (N.D. 1993) 509 N.W.2d 69, 71 ["The mere fact that a driver is traveling at a slower than usual speed on a roadway does not by itself create a reasonable suspicion of driving under the influence of alcohol or of other illegal activity."]; State v. Backer (2007) 170 Ohio App.3d 457 [ 2007 Ohio 727, 867 N.E.2d 864, 867]; State v. Rincon (2006) 122 Nev. 1170 [ 147 P.3d 233, 236-237]; Richardson v. State (Tex.Ct.App. 2000) 39 S.W.3d 634, 640; Raulerson v. State (1996) 223 Ga.App. 556 [ 479 S.E.2d 386, 387]; People v. Rotkvich (1993) 256 Ill.App.3d 124 [195 Ill.Dec. 424, 628 N.E.2d 888, 892]; see also U.S. v. Diaz (5th Cir. 1992) 977 F.2d 163, 165; U.S. v. Abdon-Limas (D.N.M. 1991) 780 F.Supp. 773, 780.) Here, there were no suspicious circumstances tending to show that the occupants of the car were engaged in illegal activity.

Because of the recent rain, Officer Wightman found it significant that droplets of water were still on the car. This led him to suspect that the car had been stolen from one of the car lots in downtown Visalia. At most, however, the presence of raindrops on the car indicated that it had not been driven a long distance. It did not indicate that the car had been stolen from a car lot; the car could have been parked in the downtown area before it was driven to the freeway. And once Officer Wightman learned, before stopping the car, that it was registered to a private owner rather than a car dealer, it was no longer reasonable for him to believe that the car had been stolen from a car lot.

According to the majority, however, Officer Wightman reasonably suspected the car was stolen from a car lot in downtown Visalia. To explain why this suspicion was reasonable even after Officer Wightman learned that the car was owned not by a car dealer, but by a private party (Pontbriant), the majority asserts that "the dealer might have recently purchased [the car] and not yet updated the ownership records, or the car could have been at the dealership for repairs." (Maj. opn., ante, at p. 148.) These hypothetical assertions are too speculative to support the majority's conclusion of reasonable suspicion by the officer that the car had been stolen from a car lot.

The majority also cites three cases to support its conclusion that, because the car in question was traveling 15 miles per hour below the maximum speed limit of 55, "a reasonable officer might suspect the driver of the car was attempting to avoid contact with the police." (Maj. opn., ante, at p. 147.) These three cases are distinguishable, however.

The first case, U.S. v. Villalobos (5th Cir. 1998) 161 F.3d 285, states that "noticeable deceleration in the presence of a patrol car can contribute to reasonable suspicion, even though drivers often slow when they see law enforcement personnel." ( Id. at p. 291.) But here the car did not decelerate; rather, it merely failed to accelerate to the maximum 55-mile-per-hour speed limit when it entered the freeway.

The second case, U.S. v. Lopez-Martinez (10th Cir. 1994) 25 F.3d 1481, states that "maintaining a noticeably slow speed in the presence of a police officer may suggest nervousness. . . ." ( Id. at p. 1486.) But in that case two cars were both traveling near the Mexican border, at a speed far below the posted speed limit (30 miles per hour when the posted speed limit was 55 miles per hour) in broad daylight and in good weather, when no other cars were on the road; there was no apparent explanation for the cars' slow speed. Here, the car driven by defendant Letner was going significantly faster (40 miles per hour in a 55-mile-per-hour zone) when stopped and, as explained earlier (see pp. 218-219, ante), the circumstances surrounding the stop indicated that the car was traveling at that speed for valid reasons.

The third case on which the majority relies is People v. Gibson (1963) 220 Cal.App.2d 15 [ 33 Cal.Rptr. 775], which states: "The fact that a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed also is a factor appearing to justify an officer's investigation." ( Id. at p. 20.) But in Gibson the detaining officers observed the slow-moving vehicle within two minutes after learning of a robbery on the same street, at a time (4:00 a.m.) when no other cars were on the street; while following the car, the officers "observed a motion . . . which looked to them like `someone was trying to put something in the back part of the car' or `someone moving something in the car.`" ( Id. at p. 18.) Such facts are lacking here.

When, as in this case, a trial court erroneously denies a motion to suppress evidence obtained in violation of the federal Constitution's Fourth Amendment, the error is harmless only if the reviewing court can say "beyond a reasonable doubt that the evidence complained of did not contribute to" the conviction. ( Franks v. Delaware (1978) 438 U.S. 154, 162 [ 57 L.Ed.2d 667, 98 S.Ct. 2674]; see also Bumper v. North Carolina (1968) 391 U.S. 543, 550 [ 20 L.Ed.2d 797, 88 S.Ct. 1788].) Here, Officer Wightman's midnight observation of both defendants in a car that belonged to Ivon Pontbriant, together with evidence indicating that Pontbriant was murdered earlier that night, played a key role in the prosecution's case. Although the prosecution also presented other evidence tending to show guilt, I cannot say beyond a reasonable doubt that Officer Wightman's testimony did not contribute to the jury's verdict.

For the reasons given above, I would reverse both defendants' murder convictions and judgments of death.

Appellants' petition for a rehearing was denied September 15, 2010. Kennard, J., was of the opinion that the petition should be granted.