Opinion
A148750
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVIN FERREYRA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 15025127, 225028)
Following a jury trial, defendant was convicted of second degree robbery, assault with a deadly weapon, and battery with serious bodily injury. At the commencement of the trial, defendant moved to suppress evidence pursuant to Penal Code section 1538.5, claiming police officers unlawfully detained him without reasonable suspicion. The trial court denied the motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of March 27, 2015, Jack H. and Audrey C. attended a party where they consumed alcohol. About 1:15 a.m. on March 28, they left the party and went to the Yerba Buena Market, a liquor store, located on the corner of 6th and Howard Streets in San Francisco. As they left the market, Mr. H. was on his iPhone with Uber, holding it with his hand up to the left side of his face. Someone approached him from behind, grabbed onto his left hand, and took his phone. At some point during the incident, the assailant said something like "give me your phone." Mr. H. reacted by grabbing onto the assailant's sweatshirt. At that moment, the man turned around, and Mr. H. saw his face. He described the man as a "black male" wearing "a dark, maybe black hoodie, jeans, shoes," and the hood "might have been up, or there was a hat on," "like a baseball hat." The baseball hat, according to Mr. H., was black with a chrome brim. During his trial testimony, Mr. H. acknowledged defendant is not Black. As Mr. H. grabbed the individual's "hoodie," he knocked "the person's phone out of their pocket." Thinking it was his phone, he let go of the man.
After the assailant started running away, Mr. H. bent over to pick up the phone, but soon realized it was not his phone; the assailant had taken his phone. Then reaching with his hand under his shirt to feel the area on his chest where the man had punched him during the incident, Mr. H. discovered he was bleeding from his chest area; his hand was covered in blood. He also sustained a cut to his forearm which left a two- to three-inch scar.
Once Mr. H. realized he was injured, he handed the phone to Ms. C. and walked into the liquor store to call the police and an ambulance. At the hospital he received 48 stiches to reconnect his torn muscle.
After receiving the cell phone from Mr. H., Ms. C. opened it up and looked through the owner's Facebook account, as well as his text messages. She was hoping her search of the phone would lead to the identity of the person who had taken Mr. H.'s phone.
On the same night Mr. H. was robbed of his cell phone, San Francisco Police Officers Galligan and Gilman were in full police uniforms, driving a marked police vehicle. The officers received a dispatch about 1:15 a.m., informing them a man had been stabbed in the chest near the intersection of 6th and Minna Streets, and the possible suspect was last seen running the wrong way down Natoma Street. Dispatch also described the suspect.
We briefly summarize the trial testimony about defendant's detention because, in the discussion section, we will describe in greater detail, based on Gilman's testimony at the motion to suppress, the circumstances leading up to the detention.
Galligan and Gilman drove to a small park, and upon entering it about 1:20 a.m. or 1:25 a.m. spotted defendant seated on one of the concrete posts/blocks. There were three other individuals in the park, one African-American man and two women. When defendant stood up and began walking away from Officers Gilman and Galligan, both officers noticed blood on defendant's white T-shirt and hands. Galligan then illuminated defendant with a flashlight, confirmed it looked like blood on the shirt, and also noticed dried blood on defendant's "hands." After observing the blood on defendant's person, the officers asked defendant to stop walking because they needed to talk to him. As Galligan spoke with defendant, Gilman went back to the area where defendant was initially sitting on the concrete block, and "looked down." There, between two concrete blocks, he discovered a "half ski mask, a black knife, a black phone, and . . . a black hat with silver writing on it." Gilman believed these items were significant because additional officers had stated a robbery had occurred involving a knife and a phone, and the assailant wore a silver brimmed hat.
Early the same morning, Officer Barone contacted Ms. C., who gave him the cell phone. Barone turned the phone over to the lead investigator, Sergeant Tam, who conducted a cursory search. As soon as he opened the phone, it was logged into defendant's personal Facebook account which depicted a photo of defendant holding the phone taking a selfie. Tam also discovered text messages in defendant's name and his e-mail address. Later, Tam obtained a warrant to allow another officer to extract the phone data.
Several days later, Mr. H. looked at the Facebook page of the owner of the phone the assailant had dropped, saw defendant's photo, and it was "pretty clear" to him the photo depicted the person who had attacked him. Mr. H. subsequently identified the defendant as his assailant in a lineup and in court.
The parties stipulated that a DNA testing report revealed the blood on the blade of the knife matched Mr. H.'s profile, but the testing on the knife handle was inconclusive.
II. DISCUSSION
Defendant asserts the trial court erred when it denied his motion to suppress evidence because the officers did not have reasonable suspicion justifying his detention. A. Factual Background
The facts are taken from the transcript of the motion to suppress hearing.
Officer Gilman was the sole witness at the motion to suppress hearing. Gilman testified at the hearing that he and Officer Galligan responded to the area of 6th and Natoma Streets in San Francisco on March 28, 2015, after receiving a dispatch report at 1:19 a.m. of an assault with a deadly weapon. Dispatch notified them a male had called in about being injured by another male, described as a young Black male wearing a black hoodie and a silver-rimmed baseball cap, last seen running the wrong way on Natoma Street towards 7th Street. The officers stopped between 1:20 a.m. and 1:25 a.m. at a small park located off of Minna Street at 6th Street, one-half block away from the scene of the incident relayed by dispatch.
When Gilman and Galligan arrived in the park, Gilman observed four individuals, one of whom was defendant. At the time of the officers' arrival, defendant was seated on a concrete block in the vicinity of 7th Street and Minna. Gilman initially noticed defendant because the three other individuals were wearing "kind of heavy clothing given it was a little cold, and mostly dark clothing, and [defendant] was wearing a white T-shirt." Gilman first spoke with a Black male. As he was speaking with the man, defendant stood up, said something and began walking away. When defendant was 20 feet away, Gilman saw "noticeable spots" on the back of defendant's shirt which looked like blood. He also saw what he believed to be blood on defendant's left hand. After seeing the spots, Gilman illuminated defendant with his flashlight. Based on Gilman's observations that defendant wore a "white shirt," with "noticeable spots on the back of the shirt," and had what appeared to be "blood on his hands," and the fact defendant was in the area of the crime a short time after it had been committed, he told defendant to stay in the area.
Gilman also noted the park was "pretty well lit with ambient lights, as well as flashlights."
Next, Gilman saw defendant put his hand in his pocket, and because the officer did not know what was contained in it, he asked defendant to "remove his hands." Defendant complied. According to Gilman, defendant then sat down on a concrete block on the opposite side of the park from where he was initially sitting when Gilman first arrived at the scene. Defendant "took a bunch of items out of his pockets" while Galligan spoke to him. Meanwhile, Gilman walked back to the area where defendant was initially sitting when the officers first arrived at the park. There Gilman noticed a half ski mask, a black folding knife, a black phone, and a black or teal Sharks hat with silver writing, on the ground near where defendant's feet would have been. In view of the location of the items, Gilman told Galligan defendant needed to be detained for further questioning, and they placed defendant in handcuffs. Officer Gilman believed the items on the ground could either have been taken in a robbery or used during the commission of a robbery.
Following the conclusion of Officer Gilman's testimony, the trial court denied defendant's motion to suppress finding the report of the crime was made "just minutes" before Gilman arrived in the park, the park was "close by" and its location was "consistent with the direction of travel of a suspect." Additionally, there was a report of an assault with a deadly weapon. Although, as noted by the court, defendant "[c]learly . . . is not a black male wearing a black hoodie with a silver brimmed hat," the court observed defendant "is in a park at night where there is a black male." The court also remarked everyone was bundled up for the cool weather, but defendant was just in a white T-shirt. And, there was no restriction on defendant's movement until after the officer saw what he thought was blood on defendant's T-shirt and hand. At that point, according to the court, once Gilman used his flashlight and made his observations, he asserted his authority. Under the totality of circumstances, the court thus concluded a "brief investigatory detention was warranted by the officer's observation of the blood on the defendant, taking into account the other factors that the Court described, as well as by the People." B. There was Reasonable Suspicion to Detain Defendant
Though defendant's arrest is not at issue, the trial court did determine there was probable cause to arrest him after defendant decided to abandon the items from his person. --------
In ruling on a motion to suppress evidence on Fourth Amendment grounds, the trial court first determines the facts underlying the police action and then must apply the law to those facts in order to resolve the dispute. (People v. Lawler (1973) 9 Cal.3d 156, 160.) On appeal we review the trial court's factual findings under the deferential substantial evidence standard of review. Once we determine the trial court's findings are supported in the record, we independently review the legal issues arising from those facts. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
Police may temporarily detain a person to investigate possible criminal activity where the officer can point to specific facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person to be detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) A finding of reasonable suspicion of criminal activity requires less information than a finding of probable cause. (Alabama v. White (1990) 496 U.S. 325, 330.)
Defendant contends Officers Gilman and Galligan lacked reasonable suspicion to detain him because he did not "remotely match the general description" provided by Mr. H. and dispatched to the officers. We disagree.
Here, contrary to defendant's claim, Officer Gilman had reasonable suspicion to detain defendant. Within 10 minutes of the robbery and stabbing, the officers observed defendant one-half block from the area of the incident, dressed only in a T-shirt on a cool night in contrast to the three other heavily clothed individuals. As soon as defendant stood up and began walking away, Gilman noticed what he believed to be blood on defendant's white T-shirt and hand, consistent with having been the perpetrator of an assault with a deadly weapon.
Though defendant did not match the dispatch description of a Black male wearing a black hoodie and a silver-rimmed baseball cap, the other evidence—the proximity in time and place to the incident, defendant's light clothing on a cool night, his attempt to leave the park upon the officers' arrival, and significantly, the bloodstains on defendant's hand and shirt—considered in light of the totality of the circumstances, provided Officer Gilman with "specific articulable facts" demonstrating "some objective manifestation" that defendant was involved in criminal activity at the time of his detention. (People v. Souza, supra, 9 Cal.4th at p. 231.) While defendant insists the discrepancy in his race and clothing demonstrate the lack of reasonable suspicion, these facts do not diminish the probative value of the other evidence supporting the trial court's finding. Based on Gilman's articulated facts, even with the noted discrepancies in the reported description of the suspect, the trial court could reasonably find the officer had more than a mere hunch that defendant had committed a crime to justify detaining him for questioning. (Ibid.)
In defendant's reply brief, he complains respondent's brief mischaracterizes where Gilman first noticed the ski mask, knife, phone, and Shark's hat "on the ground by appellant's feet" as defendant spoke to Galligan. (Italics added.) Rather, as defendant correctly points out, Gilman testified at the motion to suppress hearing that as defendant was emptying his pockets while Galligan started speaking to him, Gilman walked back to the area where defendant was initially sitting when the officers first arrived at the park, and located the items where defendant's "feet would have been." (Italics added.) Thus, according to defendant, the testimony was not "that in the presence of the officers appellant emptied his pockets, revealing items that were typically associated with a robbery. Rather, the items were on the ground in the park prior to the officers' appearance there, or alternatively, were placed on the ground by someone without the officers being aware of it." This discrepancy is a distinction of no significance because when Officer Gilman told defendant to stop and remain in the area, prior to the discovery of the items, he had reasonable suspicion based on the previously enumerated factors to detain defendant. Hence, the discovery of the items after defendant's detention played no part in the officer's decision to order defendant to stop.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.