Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. JW05-6749
RIVERA, J.
Dennis W., a minor, appeals the juvenile court’s jurisdictional and dispositional orders entered in connection with two petitions under Welfare and Institutions Code section 602. He contends the juvenile court erred in denying his motion to suppress evidence. We affirm.
I. BACKGROUND
The first petition underlying this appeal (the September petition) alleged two counts: that on or about September 13, 2006, 13-year-old Dennis had possessed a BB gun in violation of section 602 of the San Francisco Police Code (count 1) and possessed a projectile weapon in violation of sections 4501 and 4507, subdivision (a) of the San Francisco Police Code (count 2).
Dennis moved to suppress evidence of the BB gun, contending he had been illegally detained and searched. The evidence at the hearing on the suppression motion showed that San Francisco’s 911 center received a call around 10:54 on the evening of September 13, 2006. The anonymous caller reported that there was a young African-American male on the corner of Bush and Gough, “look[ing] like he might be ready to cause some trouble.” The caller said the person was “looking down the street and I don’t know if the . . . windows are broken out of the car and it just looks like he’s scoping something out.” Toward the end of the call, the caller said the suspect had “just poked his head down the sidewalk.” The caller said the suspect was wearing a long red shirt, black pants, and a black bandana, and that he looked as if he might be younger than 20.
Officer Steven Pomatto of the San Francisco Police Department and his partner, Officer Thomas Fong, received a dispatch call around 10:54 on the same evening, telling them that there was either a suspicious person standing on a corner or someone looking into or breaking into vehicles on the corner of Gough and Bush. The suspect was described as a young African-American male wearing a long red T-shirt, black pants, and a black bandana. When the officers got to the corner, they saw Dennis, who matched the description they had been given. He was standing on the corner, “kind of peering around the corner.” In the direction Dennis was looking, there was a parked vehicle and a large apartment complex. The two officers approached Dennis from behind and stood on either side of him. Fong said something to Dennis, and Dennis looked around, appearing startled. Pomatto asked what Dennis was doing, and noticed he had a very long T-shirt that reached to approximately mid-thigh. He told Fong to ask Dennis to lift his shirt up to expose his waistband, in case Dennis had any concealed weapons. It had been Pomatto’s experience that people who wore baggy layered clothing tended to conceal items such as weapons under their clothing, and he wanted to see the waistband and front pockets. Pomatto testified that he was not comfortable about his own safety unless he was able to make a “good visual scan” of the pockets and waistband. Dennis lifted his shirt, and Fong asked him what was in his pocket. Dennis said it was a BB gun, and Fong took it.
The reporter’s transcript indicates that Pomatto testified variously that he saw Dennis at the corner of Grove and Bush and on the corner of Gough and Bush. The parties point out that Grove and Bush do not intersect. It appears from the record that the incident actually took place at the corner of Gough and Bush.
Rather than wearing a black bandana, Dennis was wearing a black hat.
After the officers had detained Dennis and found the BB gun at issue here, Pomatto saw, in the direction he was looking, two people unloading something from a truck.
Pomatto testified that he found Dennis’s behavior suspicious because the hour was late and Dennis appeared nervous and had no explanation for why he was at the intersection at that time of night. His suspicions were also raised because Dennis was peering around a corner so as not to be seen, rather than simply standing on the sidewalk and looking down the street openly.
The juvenile court denied the motion to suppress, and sustained the allegations of the September petition on November 6, 2006.
A second petition was filed the next day, alleging that on or about November 6, 2006, Dennis had resisted a police officer in the performance of her duties (Pen. Code, § 148, subd. (a)(1)) (count 1) and that he had possessed tools for burglary (id., § 466) (count 2). Dennis admitted count 1, and count 2 was dismissed.
At the dispositional hearing on both petitions, the juvenile court removed Dennis from parental custody and ordered out-of-home placement.
II. DISCUSSION
Dennis contends the officers lacked reasonable cause to detain him and ask him to lift his shirt, and that as a result the juvenile court should have granted his motion to suppress. There is no dispute that Dennis was detained when the officers asked him to lift his shirt and he complied. In reviewing a ruling on a motion to suppress evidence, “the reviewing court is ‘bound by the trial court’s factual findings, whether express or implied, if they are supported by substantial evidence. However, . . . questions of law [are reviewed] independently to determine whether the challenged seizure meets constitutional standards of reasonableness.’ ” (People v. White (2001) 93 Cal.App.4th 1022, 1025.)
It is well established that “circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892.) Our Supreme Court has concluded: “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) As stated in People v. Conway (1994) 25 Cal.App.4th 385, 388 (Conway): “To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.” In making this determination, the officer may draw, when appropriate, on his training and experience. (Id. at p. 389; see also People v. Foranyic (1998) 64 Cal.App.4th 186, 189 [in reaching reasonable suspicion, considering totality of circumstances, that criminal activity may be afoot, law enforcement officer may rely on “ ‘ “common-sense conclusions about human behavior” ’ ”].) However, “an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith.” (Conway, supra, 25 Cal.App.4th at p. 389.)
Dennis contends the anonymous tip did not support a reasonable suspicion that he was involved in criminal activity. In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), our Supreme Court considered the legality of an investigatory detention based on an anonymous tip. The defendant was stopped while driving after an unidentified man had called 911 and reported that a man matching the defendant’s description had pulled a gun on him and mentioned a gang name. (Id. at p. 462.) A loaded revolver was found in the defendant’s vehicle, and he made a motion to suppress it, which the trial court denied. (Id. at pp. 461-462.) The Supreme Court granted review on the issue of whether the anonymous tip was sufficient to justify the defendant’s detention, and affirmed. (Id. at pp. 461, 463.) In doing so, it relied on various factors. First, the defendant’s conduct in pointing a gun at the caller indicated he posed a grave and immediate risk to the caller and others nearby. (Id. at p. 465.) Second, although the caller had not identified himself, the 911 call was taped, which raised the possibility that the caller could be identified by his voice and made it less likely that the call was a hoax or a false report. (Id. at p. 467.) Third, “the tipster-victim provided a firsthand, contemporaneous description of the crime as well as an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived.” (Id. at p. 468.) Fourth, the caller plausibly explained that he wanted to remain anonymous because of fear of retaliation. (Id. at p. 469.) Under the totality of the circumstances, the court concluded that “there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable” to justify the detention. (Id. at p. 471.)
In doing so, the court in Dolly distinguished Florida v. J. L. (2000) 529 U.S. 266 (J. L.), upon which Dennis relies here. (Dolly, supra, 40 Cal.4th at pp. 465-466, 468.) In J. L., the United States Supreme Court concluded that an anonymous tip a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person. (J. L., supra, 529 U.S. at p. 268.) An anonymous caller had reported to the police department that a young Black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. There was no audio recording of the tip, and nothing was known of the informant. Officers who went to the area saw three Black males. One of them, the defendant, was wearing a plaid shirt. Officers did not see a firearm, and the defendant did not make any unusual movements. An officer approached the defendant, frisked him, and found a gun. (Ibid.) Although recognizing that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop’ ” (id. at p. 270, quoting Alabama v. White (1990) 496 U.S. 325, 327 (White)), the court concluded the tip lacked the necessary indicia of reliability (J. L., supra, 529 U.S. at p. 271). The call contained no predictive information “and therefore left the police without means to test the informant’s knowledge or credibility.” (J. L., supra, 529 U.S. at p. 271.) The fact the defendant turned out to have a gun did not suggest that, prior to frisking him, the officers had a reasonable basis for suspecting the defendant of engaging in unlawful conduct. (Ibid.) Although the caller had correctly identified the person accused, the tip did not show that the caller had knowledge of criminal activity. “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Id. at p. 272.) In distinguishing J. L., the court in Dolly noted that J. L. did not involve an emergency (Dolly, supra, 40 Cal.4th at pp. 465-466), and that the informant in J. L. did not explain how he knew about the gun or supply any basis for believing he had inside information (Dolly, at p. 468).
The court distinguished White, a case in which the police had received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a certain motel. Standing alone, the court stated, the tip would not have justified a detention; “[o]nly after police observation showed that the informant had accurately predicted the woman’s movements . . . did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.” (J. L., supra, 529 U.S. at pp. 270-271, discussing White, supra, 496 U.S. at pp. 327, 329, 332.)
A review of the relevant factors leads us to conclude that the officers were justified in detaining Dennis. Although the telephone tipster was anonymous, the call was recorded, and it indicated that the caller was observing the suspect’s movements while speaking. The caller indicated that the suspect was “scoping something out,” mentioned a car that may have had broken windows, and described him acting in a suspicious manner. The officers’ own observations corroborated the tip. When they arrived at the street corner in question, they saw Dennis, who matched the description the caller had given, not moving and “peering around the corner,” as if concealing his presence. It was approximately 11:00 in the evening. Dennis appeared startled and nervous when the officers approached him. In the totality of the circumstances, the officers could reasonably suspect that Dennis was looking for an opportunity to break into a vehicle. (See Conway, supra, 25 Cal.App.4th at p. 388.)
We also conclude the officers acted reasonably in searching Dennis for weapons. “[A]n officer has the authority to conduct a reasonable search for weapons where that officer has reason to believe a suspect is armed and dangerous, regardless of whether he has probable cause to arrest the individual for a crime. [Citation.] Further, the officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074, citing Terry v. Ohio (1968) 392 U.S. 1, 27; see also People v. Jordan (2004) 121 Cal.App.4th 544, 553 (Jordan) [“[a] Terry stop and frisk is justified if the information known to the officers before conducting the stop and frisk is sufficient to create a reasonable suspicion of criminal conduct”].)
As we have discussed, the officers had reasonable grounds to suspect that Dennis was preparing to break into a car. Pomatto testified that he told Office Fong to ask Dennis to lift his shirt for “officer’s safety reasons,” and that in his experience, auto burglars commonly carried items to break car windows, such as large screwdrivers, flash lights, or crowbars. In Pomatto’s experience, weapons could be concealed under the kind of clothing Dennis was wearing. In the circumstances, a reasonably prudent officer would fear that Dennis might be carrying weapons. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
Dennis relies on Jordan, which concluded that an anonymous tip did not form a basis for a reasonable suspicion to justify a stop and frisk of the defendant. (Jordan, supra, 121 Cal.App.4th at pp. 558-564.) As Division Four of the First Appellate District noted in People v. Lindsey (2007) 148 Cal.App.4th 1390, 1398, Jordan was decided before Dolly, and did not have the benefit of our Supreme Court’s analysis there. We have already concluded that the factors discussed in Dolly lead to the conclusion that the officers acted reasonably in detaining Dennis, and we also conclude they reasonably checked him for weapons.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.