Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR506428.
McGuiness, P.J.
Michael Sean Philips appeals from a judgment entered after he pleaded no contest to first degree burglary. (Pen. Code, § 459.) He contends the trial court erred when it denied his motion to suppress. We disagree and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Shortly before 5:00 a.m. on February 22, 2007, Santa Rosa police officer Jaime Woods received a dispatch call to perform a welfare check on a customer at a restaurant. The restaurant’s night manager had reported that the customer was acting strangely and was possibly under the influence of alcohol or drugs. At the time, Officer Woods was wearing his police uniform and was driving a marked police vehicle.
After receiving the dispatch call, Officer Woods placed a telephone call to the restaurant’s night manager, whom he knew by name as a consequence of their frequent dealings. Officer Woods indicated he was en route. The manager reported that the customer had not broken any laws but that he was acting strangely and “just causing a disturbance.” When asked to explain what he meant, the manager expressed his belief that the customer was under the influence of drugs or alcohol. The manager reported that the customer sat at a table for twelve by himself and had complained about the food, the bill, and everything else. While on the phone with Officer Woods, the manager stated that the customer was leaving and getting into a car. He described the car as a green Dodge van and gave the officer the vehicle’s license number as a well as a physical description of the customer.
The manager was still on the phone with Officer Woods when he reported that the customer was returning to the restaurant. At that point, the officer was only a couple of blocks away from the restaurant. Officer Woods overheard the customer speaking with the manager but could not make out what the customer was saying. The manager then stated the customer was again leaving the restaurant.
As Officer Woods arrived at the restaurant parking lot, he saw a man who matched the description given by the manager. The man was getting into a green Dodge van. Officer Woods identified appellant as the man he saw climbing into the van. The officer left his patrol vehicle and approached the van. Appellant was in the driver’s seat, with the door closed and the window rolled up. The van’s engine was running. Although it was dark outside at the time, the parking lot was illuminated. Officer Woods knocked on the driver’s side window and told appellant to roll down the window and turn off the car. The officer testified that he yelled so that appellant could hear him. He identified himself as a police officer and shined his flashlight on his badge and uniform. Appellant looked at Officer Woods and then looked away but did not roll down his window. Appellant then looked around the parking lot, looked around the inside of the van, and then started to back out of the parking space before stopping about half-way out of the parking stall. Officer Woods again knocked on the driver’s side window and continued yelling at appellant to turn off his vehicle and roll down the window. Appellant was acting in a bizarre fashion as he looked around some more, then backed out of the parking space and drove toward the parking lot exit, before stopping yet again. As Officer Woods was trying to decide whether to walk toward the stopped van or return to his patrol vehicle in order to give chase, the van left the parking lot. Officer Woods immediately broadcast a description of the vehicle and its direction of travel, then returned to his patrol vehicle, activated the overhead lights and siren, and proceeded to follow the van, which was several hundred yards away before the officer began his pursuit.
When Officer Woods caught up with the van, appellant failed to stop but instead turned into a dead-end street, drove to the end, and stopped after turning left into an open area. Appellant left the van and began walking around, flailing his arms, and yelling that he did not know Officer Woods was a police officer. Officer Woods shouted for appellant to get back into his car, but appellant did not comply. Officer Woods continued yelling at appellant, instructing him to turn away, put his hands over his head, and get back in his car. Appellant did not obey those orders. Instead, appellant grabbed his jacket with his left hand and reached under the jacket with his right hand. Concerned that appellant might be reaching for a weapon, Officer Woods drew his gun and pointed it at appellant. Eventually, appellant was handcuffed and placed under arrest for resisting an officer in the performance of his duties (§ 148, subd. (a)(1)).
Another police officer arrived at the scene of the arrest and noticed that appellant matched the description of a burglar who had entered an occupied residence the evening before. The burglary victim had encountered the burglar in her condominium before he left, and reported that underclothes, a massager, and a Canon camera were missing from her bedroom. In a search of the van incident to the arrest, officers found a back massager and a Canon camera, as well as items of female clothing strewn about the van. Officers also found two glass smoking pipes in the front passenger seat. The burglary victim drove to the scene of the arrest and identified personal property in the van that had been taken from her home. Later, she identified appellant at the police station as the man whom she had encountered in her home the evening before.
On March 19, 2007, the Sonoma County District Attorney filed an information charging appellant with first degree burglary (§ 459), receiving stolen property (§ 496, subd. (a)), misdemeanor resisting an officer in the performance of his duties (§ 148, subd. (a)(1)), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
Appellant filed a motion to suppress evidence under section 1538.5, claiming the evidence seized from the van should have been suppressed because he was illegally detained. The court held an evidentiary hearing on April 25, 2007, at which Officer Woods testified. Appellant’s defense counsel stipulated that the only issue before the court was whether the detention was legal. Appellant did not challenge the subsequent events involving the arrest and the search of the van.
After hearing argument on April 27, 2007, the trial court denied the motion to suppress. The court reasoned it was proper for Officer Woods to make contact with appellant while he was parked in the restaurant parking lot. The court further concluded that when appellant proceeded to back up the van, despite the officer’s efforts to stop him, appellant committed a misdemeanor violation of section 148, subdivision (a)(1), by resisting the officer in the performance of his duties. The court pointed out that appellant continued to act strangely after the traffic stop when he got out of his car and refused to comply with the officer’s orders. The court explained there was a “second 148” at that point, so that Officer Woods was justified in taking appellant into custody for two violations of section 148, subdivision (a)(1)—one at the restaurant and one at the final stopping point when appellant refused to comply with the officer’s orders.
Following the denial of his suppression motion, appellant entered a plea of no contest on April 30, 2007, to one count of first degree burglary (§ 459). Pursuant to a plea bargain, the court dismissed the remaining charges. On June 20, 2007, the trial court sentenced appellant to the mid-term of four years in state prison. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erred when it denied his motion to suppress. He argues that a conclusory tip from a citizen informant that a person is under the influence of alcohol or drugs does not provide reasonable suspicion for police to detain the individual in the absence of information corroborating the tip. The question, as appellant frames it, is whether the information Officer Woods received regarding appellant’s purportedly strange behavior, together with the officer’s observations, provided him with justification to detain appellant. We conclude the detention was lawful.
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 924.) “In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court’s reasoning. [Citations.]” (People v. Zichwic (2001) 94 Cal.App.4th 944, 951.)
“Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty. [Citations.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [¶] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
There is no bright line rule to determine whether an encounter is consensual. (Ohio v. Robinette (1996) 519 U.S. 33, 39.) “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” (Florida v. Bostick (1991) 501 U.S. 429, 439.) Whether or not a person would have believed that he or she was free to leave is to be evaluated in light of the totality of the circumstances, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 572-573.) Factors that may indicate that an unlawful detention has taken place include (1) the presence of several police officers, (2) an officer’s display of a weapon, (3) some physical touching of the person, or (4) the use of language or a tone of voice indicating that compliance with the officer’s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554.)
To justify an investigative detention, there must be articulable facts leading to a reasonable suspicion that some activity relating to a crime has occurred or is about to occur and that the person the officer intends to detain is involved in that activity. (See People v. Souza (1994) 9 Cal.4th 224, 230.) In short, a reasonable suspicion of involvement in criminal activity justifies a temporary stop or detention. In Adams v. Williams (1972) 407 U.S. 143, 146, the United States Supreme Court noted: “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations.]” “The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ [Citation.] The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. [Citation.]” (United States v. Sokolow (1989) 490 U.S. 1, 7.) Because no “neat set of legal rules” determines whether a particular set of facts meets this “ ‘minimal level of objective justification,’ ” a police officer ordinarily must rely on a combination of factors in deciding whether to stop and question an individual. (Ibid.)
“ Moreover, ‘[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal, or illegal—to “enable to the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.]” ’ [Citations.]” (People v. Leyba (1981) 29 Cal.3d 591, 599.)
As appellant acknowledges, when Officer Woods initially approached him in the restaurant parking lot, the officer sought to engage appellant in a consensual encounter. He did so by knocking on the driver’s side window, identifying himself, and asking appellant to stop the van and roll down the window. When appellant left the parking lot, there had been no detention. There had only been an attempted consensual encounter in which appellant had not stopped and talked to the officer as requested.
Even if we were to conclude the circumstances tended to show that a reasonable person in appellant’s position would have believed he or she was not free to leave, we would nonetheless conclude the encounter did not amount to a detention, because appellant failed to submit. A police officer may effect a detention by a show of authority, but there is no seizure for Fourth Amendment purposes without actual submission. (Brendlin v. California (2007) 127 S.Ct. 2400, 2405; see also California v. Hodari D. (1991) 499 U.S. 621, 626 [no seizure occurs without physical force, or where that is absent, submission to assertion of authority].)
When he sought to question appellant, Officer Woods observed appellant looking around repeatedly, stopping more than once, and generally behaving in a bizarre fashion. These observations corroborated the night manager’s statement that appellant had been acting strangely, as if he were under the influence of alcohol or drugs. Officer Woods not only observed appellant’s behavior that corroborated the night manager’s tip, but he also observed appellant driving a motor vehicle while possibly under the influence. His observations, together with the information provided by the night manager, combined to create reasonable suspicion to justify an investigative traffic stop to determine if appellant was driving under the influence. Accordingly, the officer had legal justification to detain appellant, at least temporarily, to assess whether he was driving while intoxicated or under the influence of drugs. Thereafter, when he eventually stopped the van during the pursuit, appellant continued to act strangely and repeatedly refused to comply with the officer’s demands, going so far as to reach under his jacket and raise a concern that he might be reaching for a weapon. At that point, the officer had probable cause to arrest appellant, whose repeated refusal to comply with the officer’s instructions amounted to willful resistance, delay, or obstruction of a peace officer’s duties within the meaning of section 148, subdivision (a)(1).
Appellant contends that a “conclusory tip” from an informant that he may have been under the influence was insufficient to justify the detention, relying on Campbell v. Department of Licensing (1982) 31 Wash.App. 833 [644 P.2d 1219] (Campbell). In Campbell, a passing motorist gave a Washington state trooper the description of a vehicle the motorist believed was being driven by a drunk driver. The trooper stopped the suspected drunk driver’s vehicle even though the trooper had not observed any illegal activity or conduct indicative of drunk driving. (644 P.2d at p. 1220.) Upon investigation the trooper determined the driver was in fact under the influence of alcohol. (Ibid.) The Washington State Court of Appeals held that “[i]n the absence of any corroborative information or observation, a police officer is not authorized to stop a vehicle on the sole basis that a passing motorist points to a vehicle and announces that it is being driven by a drunk driver.” (Ibid.) The court concluded the trooper had “absolutely nothing to suggest that the driver was under the influence of intoxicating liquor except a conclusory tip from a unidentified passing motorist that the driver was drunk.” (Id. at p. 1221.) The court pointed out that the passing motorist provided no factual information from which the trooper could assess the probable accuracy of the motorist’s conclusion, plus the trooper saw nothing that would have corroborated the tip. (Ibid.)
The facts of this case bear little resemblance to those in Campbell. Here, the night manager, unlike the passing motorist in Campbell, offered factual observations tending to support the conclusion appellant was under the influence, e.g., that appellant was sitting alone at a table for twelve, complaining about everything, and leaving and returning to the restaurant. While such behavior may have an innocent explanation, it also tends to support the conclusion appellant was under the influence of drugs or alcohol. Furthermore, the officer had the opportunity to observe appellant’s behavior. Officer Woods personally observed appellant acting in a bizarre fashion, including failing to acknowledge the officer’s presence when he attempted to engage appellant in a consensual encounter. Officer Woods detained appellant not based upon a “conclusory tip” but rather upon a tip supported by factual information and corroborated by his own observations.
Our Supreme Court recently held that an anonymous and uncorroborated tip regarding a possibly intoxicated driver may afford a police officer reasonable suspicion to justify a temporary detention to investigate further. (People v. Wells (2006) 38 Cal.4th 1078, 1081-1082 (Wells).) The high court concluded that “the grave risks posed by an intoxicated highway driver justif[y] the minimal intrusion of a brief investigatory traffic stop.” (Id. at p. 1082.) In Wells, an officer received a report of a possibly intoxicated driver weaving all over the roadway. The tipster provided a description of the suspect vehicle as well as its general location. Our Supreme Court held the traffic stop was justified by reasonable suspicion of criminal activity, even though the officer had not personally observed any reckless driving. (Id. at pp. 1081, 1088.) The tipster’s information regarding the vehicle and its location was sufficiently precise, the report of a motorist weaving all over the roadway demanded an immediate stop to protect the driver and other motorists, and the “innocent” details of the report (i.e., the vehicle’s description and location) were fully corroborated within minutes of the report. (Id. at p. 1088.)
Here, although the night manager did not report erratic driving, he did report behavior indicative of a person under the influence of drugs or alcohol. Under Wells, Officer Woods was arguably justified in detaining appellant when he arrived at the restaurant parking lot, even before he had the opportunity to observe appellant’s bizarre behavior. After all, the officer had confirmed the night manager’s description of the vehicle and the suspect, appellant was preparing to drive off on a public roadway, and there was reason to believe appellant was intoxicated. At a minimum, after the officer himself observed appellant’s odd behavior, he was then justified in detaining appellant to ensure that appellant did not pose a danger to himself and other motorists. Under the circumstances, the officer had reasonable suspicion to justify an investigatory detention without the need to personally observe appellant committing a traffic violation or driving erratically.
Appellant objects to the trial court’s ruling on the ground he should have been free to leave when Officer Woods attempted to speak to him in the parking lot. He argues that a citizen has a right to ignore an officer who attempts to engage the citizen in a consensual encounter, and he complains that this right is illusory if the officer can predicate reasonable suspicion to detain the citizen based upon the exercise of that right. Appellant’s behavior, however, was suggestive of much more than simply a person exercising the right not to engage an officer in a consensual encounter. Appellant neither listened to the officer nor acknowledged his presence, but instead acted in an erratic manner consistent with being under the influence of alcohol or drugs. Appellant’s behavior during the encounter with the officer, taken together with the information from the restaurant’s night manager, provided reasonable suspicion to believe appellant may have been driving under the influence.
Viewing the totality of the circumstances, we conclude the officer’s traffic stop was justified by reasonable suspicion of criminal activity. The trial court properly denied appellant’s motion to suppress evidence found during the search that followed his detention and subsequent arrest.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.