Absent the invention of a time machine, there's no way to prove or disprove the following hypothesis. I'd nonetheless bet a fair amount of money that five or ten years ago, this case would have come out the other way.
You could easily see how an opinion could be written to say that Mr. Paul wasn't detained at all when the officers first approached him. Something like this:
"The officers approached Mr. Paul's stopped vehicle on foot. They didn't draw their weapons. They didn't block his vehicle from departing, either with their police cruiser or with their bodies. They engaged him in polite conversation, just like anyone else. They never told him he wasn't free to leave. Sure, they shone their flashlights on him, but that was understandable, since it was 9:00 p.m. and dark. No reasonable person could have believed that they were not free to leave the voluntary conversation with the officers. As a result, there was no detention at all, and hence no illegal search."
What I think has relatively recently changed, however, is a more robust understanding of police/civilian interactions, particularly in poorer, minority communities. I doubt that even I would feel entirely free to leave if the police pulled up to my vehicle, shined their lights on me, and started talking to me. But one's willingness to fire up your car and suddenly pull away as the police approach might be even lower if, say, you're a young black man with dreadlocks in South LA. Amongst other things, that's potentially a pretty good way to get yourself shot.
(Today's opinion doesn't say where the incident here occurred, and the briefs aren't online, but I will note that there's a "Jeremiah Paul" in Compton -- as well as another one who works in East L.A. -- and the defendant apparently had dreadlocks and the incident was in an area "patrolled regularly" by the cops and in which the officer's usual practice was to ask anyone if they were on probation or parole. So there's at least a chance that the dynamics of the encounter might not have been exactly like, say, Elon Musk being pulled over on Rodeo Drive.)
I think that some of this might have influenced how the Court of Appeal comes out here. Here's how Justice Moor ultimately comes out -- a fair piece different than my hypothetical opinion a decade ago:
Considering the totality of the circumstances, we conclude that the initial encounter with the officers was an unlawful detention and that the trial court’s order must be reversed. Several factors lead us to this conclusion. First, although Officer Kumlander did not park the patrol car in a manner that prevented Paul from driving away, the officers’ subsequent positioning of their bodies blocked Paul from either driving away or departing on foot. By Officer Kumlander’s own testimony, he was at most between two to three feet away from the Prius’s driver’s side door. Paul testified that the officer was inches away and that he could not open the door without hitting the officer. The video shows that, even if Officer Kumlander was standing a few feet away from the Prius initially, he was holding his flashlight only inches away from the driver’s side window and had to move back to permit the door to open even slightly. Paul could not have exited the vehicle with Officer Kumlander standing there, nor could Paul have pulled the Prius out and driven away without either engaging or endangering Officer Kumlander. An objective person would not believe that he or she was free to simply start driving away with Officer Kumlander standing in the roadway. Moreover, the presence of Officer Helmkamp on the passenger side of the vehicle prevented Paul from sliding across the seat and exiting on foot without engaging Officer Helmkamp.
Second, Officer Kumlander and Officer Helmkamp exited their vehicle, approached the Prius from both sides, and shined their flashlights into the Prius from close range, right at the car door windows. This was a display of authority that would lead an objective person to believe that he or she was suspected of wrongdoing, both because more than one officer approached and because the officers shined their flashlights on Paul from opposite angles, effectively illuminating him on all sides. . . . If the officers wished to signal that Paul was free to go, the officers could have approached the Prius from the same side of the vehicle and engaged Paul in casual conversation. The officers instead flanked the Prius and approached from both sides while shining their flashlights into the vehicle. The officers’ approach is exactly the kind of coordinated action that an objective person would expect to witness when being detained. A reasonable person would conclude that when two officers approach in this manner, surrounding the individual in the vehicle, he or she is not free to leave.
Third, the officers approached Paul while he was talking on his phone inside a legally parked vehicle with the windows rolled up. Paul could not reasonably decline to interact with the officers without suspending or ending his phone conversation and at least engaging in a brief conversation with them. The circumstances would lead an objectively reasonable person believe that the officers required their attention and that they could not simply depart. . . .
Finally, although the dialogue between Paul and Officer Kumlander appears to have been non-confrontational in tone and language up to the point when Paul stated that he was a parolee, this is not strong evidence to conclude that a reasonable person would have felt at liberty to terminate the encounter with the officer. . . . Ostensibly, Officer Kumlander would interact in a polite, professional manner with a detainee who was responding in a polite manner, as Paul was in this case. If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions. Moreover, if Officer Kumlander did not intend to detain Paul, he could have stated that Paul was free to leave at the outset of the conversation.
In light of all of the circumstances, we cannot conclude that the interaction between Paul and the officers was consensual."
I'm confident that there are many appellate judges (both state and federal), in California and elsewhere, who would have found these interactions entirely consensual, even today.
But I also think there's an increasing number who would agree with Justice Moor. Including but not limited to, obviously, the other two members of the panel here, since the opinion is unanimous.
