Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04902034-8. Gregory T. Fain, Judge.
Law Offices of Nuttall & Coleman, Mark W. Coleman and Shannon C. Harding for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Julian Fernando Ybarra appeals from his conviction of possession of methamphetamine for sale and possession of a firearm by a felon. He contends the trial court erred in denying his motion to suppress evidence seized by police officers while they detained him in an alleyway behind his apartment based on an anonymous telephone call. In particular, defendant argues the police officers did not have a reasonable suspicion of criminal activity necessary to justify the detention. We disagree and thus affirm the judgment.
FACTS AND BACKGROUND
The following is a brief summary of the testimony and other evidence submitted in connection with defendant’s motion to suppress evidence.
On March 21, 2004, at 5:59 p.m., an anonymous telephone call was received by the Fresno Police Department. The caller reported that drug deals were going on in an alleyway behind 3306 East Sierra Madre, which activity the caller observed from his window while washing dishes. The caller identified the man selling drugs as Hispanic, age 28 or 29, about 5 feet 11 inches tall, medium build, wearing a white shirt and blue shorts. He said the drug activity was going on “now” in the alleyway. The caller said he had observed a drug sale to an older white man in a black car about 20 minutes before. He provided a license plate number of the black car. There was also another guy who came by and bought some drugs. The caller wanted to remain anonymous because “they’ll shoot me.”
The call was recorded, although it is uncertain whether it was a 911 call.
At 6:03 p.m., Fresno Police Officers Gerald Sepeda and Derek Kumagai received an audio dispatch to investigate a report of a person selling drugs in the alley of 3306 East Sierra Madre Avenue. The dispatch described the suspect as a Hispanic male, approximately 28 years old, medium build, 5 feet 11 inches tall, and wearing a white shirt and blue shorts. Further, the officers were told in the dispatch that the suspect “is selling drugs,” is “still there,” that a drug sale was observed “about 20 minutes ago” to a man in a black car with an identified license plate, and that there are “other subjects coming and going.” (Italics added.)
The officers received only the audio dispatch, which contained a brief synopsis of the information received in the call. Nothing in the record suggests the officers were aware it was an anonymous call.
Five minutes after the dispatch, Officers Sepeda and Kumagai arrived on the scene and observed defendant, a Hispanic man wearing a white shirt and denim shorts, coming out of a garage located in the subject alley. According to Officer Sepeda, defendant appeared to match the description provided in the dispatch and there was no one else in the alley. The officers, who were in plain clothes, drove around the corner to put on their police vests and quickly returned to the alley about one minute later. Defendant came out of the garage and was about to enter the driver’s side of a vehicle located on Fisher Street. A woman, who was later identified as defendant’s wife, was getting into the passenger seat. The officers pulled up behind the car and told defendant and his wife to “come over here” because the officers “needed to speak with them.”
Officer Sepeda asked defendant his name. Defendant identified himself and also stated that he was on active parole. Officer Sepeda called dispatch and confirmed defendant’s active parole status. After his parole status was verified, the officers began searching defendant.
Defendant’s wife announced that she needed to go pick up their daughter. The officers initially gave her permission to go, but stopped her once they found a large amount of cash in defendant’s left front pocket, a fact that strengthened their suspicions that defendant could be involved in narcotics sales. The vehicle was then searched, and the officers found narcotics, ammunition, a sawed off shotgun and a dagger.
On cross-examination, Officer Sepeda admitted that when he arrived and observed defendant, defendant was not acting suspicious. Officer Sepeda also acknowledged that, generally speaking, it would not be unusual for a Hispanic male to be in the area. Nor would it be highly unusual or distinctive for a person to be wearing a white shirt and blue shorts. Nevertheless, he decided it was reasonable to detain defendant because defendant not only matched the description but was the only individual in the alley at that precise time -- which was very soon after the dispatch was received. Further, Officer Sepeda stated he understood from the dispatch that the suspect was still selling drugs in the alley. Thus, defendant’s presence at that location, at that particular time, matching the reported description, provided corroborating circumstances to support the detention.
Officer Sepeda understood that the searches of defendant’s person and vehicle were conducted pursuant to the parole condition, and only occurred after defendant’s active parole status had been confirmed.
Defendant’s wife, Maria Ybarra, testified on defendant’s behalf at the hearing. She said defendant had merely been fixing a neighbor’s car in the garage. She said the police officers approached, grabbed defendant and handcuffed him. After being handcuffed, defendant admitted to being on parole. One of the officers patted him down. She then told the officers she had to go pick up her daughter, but the officers asked her to stop and then searched the car. She also stated that defendant was heavy at that time, about 230 pounds, due to medication. Defendant’s neighbor, Tyrone Bradley, also testified on defendant’s behalf. He said that defendant had been working on Bradley’s car earlier that day, and that Bradley gave defendant money for a part that was needed.
In further testimony, Officer Sepeda verified that the audio dispatch did not say that the suspect in the alley had facial hair or prominent tattoos, while defendant did have such characteristics. Further, it was acknowledged by Officer Sepeda that defendant was two inches shorter and several years older than the description provided in the dispatch.
Although the audio dispatch (and anonymous tip) described the person selling the drugs as a Hispanic man, 5 feet 11 inches tall, medium build, 28 years old, wearing a white shirt and blue shorts, Officer Sepeda testified that defendant was 5 feet 9 inches tall and 38 years old at the time of his arrest. These variations did not outweigh the reasons to detain defendant, and Officer Sepeda’s law enforcement experience taught him that witnesses sometimes got details of a description wrong or perceived things differently.
After hearing the testimony and other evidence relating to the motion to suppress evidence, the trial court denied the motion, finding the officers’ detention and search of defendant to be reasonable under the circumstances. Thereafter, defendant withdrew his not guilty plea and pled no contest to the charges against him, including violation of Healthy and Safety Code section 11378 and Penal Code section 12021, subdivision (a)(1). Defendant was sentenced on July 11, 2007, to a total prison term of 14 years. He then filed this appeal from the order denying his motion to suppress evidence.
DISCUSSION
I. Standard of Review
Upon review of the denial of a motion to suppress evidence, an appellate court accepts the trial court’s factual findings if supported by substantial evidence, but independently assesses whether the search and seizure conformed to constitutional standards of reasonableness. (People v. Alvarez (1996) 14 Cal.4th 155, 182-183; People v. Loewen (1983) 35 Cal.3d 117, 123.)
II. Standards for Determining Reasonableness of Detention and Search
A police officer may stop and briefly detain a person for investigative purposes if they have a reasonable suspicion the person was engaged in criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8.) “‘“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.”’ [Citation.]” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1396.)
This is sometimes referred to as a Terry stop, based on Terry v. Ohio (1968) 392 U.S. 1, 30.
As summarized in a recent California Supreme Court decision: “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶] Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances, “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
In Florida v. J.L. (2000) 529 U.S. 266, the United States Supreme Court held that an anonymous telephone tip in that case, which reported that a young black male standing at a bus stop in a plaid shirt “[is] carrying a gun” was insufficient -- without more -- to justify a detention and patdown search of the individual. (Id. at p. 268.) In that case, there was no audio recording of the tip, nothing was known about the informant, and it was unknown how long it took the police to respond to the tip. Upon their arrival, the police officers observed no suspicious conduct on the part of the individual and there was no indication he might have been carrying a gun. (Ibid.) The court recognized that there are situations, as in the case of Alabama v. White (1990) 496 U.S. 325, where “an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’” (Florida v. J.L., supra, at p. 270.) In White, predictive information in the tip was corroborated by the police and thus provided a reasonable basis to think the informant had inside knowledge about the suspect. (Florida v. J.L., supra, at pp. 270-271.) In contrast, the tip in Florida v. J.L. “lacked the moderate indicia of reliability present in White .…” (Id. at p. 271.) “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” (Ibid.) Hence, the detention and search in that case were incompatible with the Fourth Amendment.
In People v. Jordan (2004) 121 Cal.App.4th 544, 547-548 (Jordan), where there was an uncorroborated tip reporting an adult in possession of a firearm in a public park, we noted the remarkable similarity to the facts and circumstances presented in Florida v. J.L., supra, 529 U.S. 266, and concluded that the motion to suppress should have been granted. We find Jordan to be distinguishable because in the present case, unlike in Jordan and Florida v. J.L., the tipster gave a detailed description of the suspect and location that was quickly dispatched and confirmed, reported criminal activity that was contemporaneously observed by the tipster, and offered a reasonable explanation for wanting to remain anonymous.
The California Supreme Court has recently decided two cases involving investigatory detentions prompted by anonymous telephone calls, in which the court analyzed and distinguished Florida v. J.L., supra, 529 U.S. 266, in the particular circumstances of each case.
In People v. Wells (2006) 38 Cal.4th 1078, an anonymous and uncorroborated report to the police accurately described a vehicle (a 1980’s model blue van) and its location in traffic and related that an apparently intoxicated person was behind the wheel “‘weaving all over the roadway.’” (Id. at p. 1081.) A dispatch report was promptly broadcast at 1:43 a.m. to a California Highway Patrol officer in the same area who, moments later, saw the blue van and pulled it over. He did not see the van weaving or otherwise violating traffic laws. In speaking to the driver of the van, the officer saw indications that she was under the influence of drugs or alcohol, which was confirmed by a field sobriety test. The Supreme Court held that under all the circumstances, including the exigent circumstances involved, the anonymous tip was sufficient to justify the investigatory stop and detention. (Id. at p. 1083.)
Although People v. Wells, supra, 38 Cal.4th 1078, primarily relied on the circumstance that a possibly intoxicated driver weaving all over the road posed a grave and immediate danger to the public (id. at p. 1087), the court also noted several factors were present that tended to corroborate the reliability of the anonymous call. The court pointed out that “doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller.” (Ibid.) Further, “the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip.” (Id. at p. 1088.) Finally, the identity and status of the tipster was not completely unknown since it was reasonably apparent from the details provided that the tip came from a passing motorist. (Ibid.) The court concluded: “Viewing the totality of circumstances in the present case, we are convinced that the officer’s traffic stop was justified by reasonable suspicion of criminal activity. [T]he tipster’s information regarding the van and its location was sufficiently precise, and its report of a motorist ‘weaving all over the roadway’ demanded an immediate stop to protect both the driver and other motorists. The tip reported contemporaneous activity and its ‘innocent’ details were fully corroborated within minutes of the report.” (Ibid.)
In People v. Dolly (2007) 40 Cal.4th 458, an unidentified 911 caller reported that an African-American male had “‘just pulled a gun’” on him and had mentioned a gang name. The caller said he believed the perpetrator was about to shoot him. The caller specifically described the perpetrator, the parked vehicle the perpetrator was sitting in, and gave an exact location. When the police officers arrived at that location a few minutes later, they found the vehicle and a man sitting inside who matched the description provided by the caller. The officers asked him to get out of the car, at which time they found a loaded .38-caliber revolver. (Id. at p. 462.) The issue before the Supreme Court was whether the anonymous tip was sufficient to justify the defendant’s detention. The court concluded the detention was justified by reasonable suspicion of criminal activity under the totality of the circumstances. (Id. at pp. 465-466.)
In reaching this conclusion, the Supreme Court considered a number of factors bearing upon the reasonableness of the detention and the reliability of the anonymous call. First, pointing a gun at the caller and threatening to shoot him posed a grave and immediate danger to the caller and anyone nearby. (People v. Dolly, supra, 40 Cal.4th at p. 465.) Second, “there is no reason to think that anonymous phoned-in tips concerning contemporaneous threats with a firearm are any more likely to be hoaxes than are anonymous phone-in tips concerning a contemporaneous event of reckless driving,” which have been held to provide police with a reasonable suspicion to stop a vehicle. (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.) In elaborating on this third point, the court emphasized that a primary determinant of a tipster’s reliability is the basis of his knowledge. (Ibid.) Thus, “[t]his case is … unlike J.L., in which the informant ‘neither explained how he knew about the [concealed] gun nor supplied any basis for believing he had inside information’ [citation] and in which the record did not reveal when the caller discovered the suspect had a concealed weapon or how soon the police responded to the call [citation]. The police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant ‘was reporting what he had observed moments ago,’ not stale or second-hand information.’ [Citation.]” (Ibid.) Fourth, the caller provided a reasonable explanation for wanting to protect his anonymity. (Id. at p. 469.)
III. The Detention in the Present Case Was Valid Under All the Circumstances
Defendant contends that the motion to suppress evidence should have been granted based on Florida v. J.L., supra, 529 U.S. 266. We conclude otherwise.
Here, unlike in Florida v. J.L., supra, 529 U.S. 266, the caller 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.” (People v. Dolly, supra, 40 Cal.4th at p. 468) The caller in the present case described the perpetrator in detail, including his height, build, ethnicity, apparent age, and two items of clothing. More than that, the caller provided a specific location where the drug activity was occurring and a reasonable factual basis for his personal knowledge thereof -- namely, the caller was actually observing what was happening from his apartment window. He also provided specific information concerning one transaction that had occurred twenty minutes earlier, including the license plate number of the purchaser’s black car. These firsthand, detailed descriptions given while criminal conduct was still underway, and where the caller furnished a reasonable basis for his personal knowledge thereof, endow the tip with greater reliability, particularly when the officers rapidly arrived to the alley location only a few minutes later to find a person matching that description.
Other circumstances weighing in favor of the tip’s reliability in the present case included that the caller expressed a reasonable basis for wanting to remain anonymous --i.e., fear of reprisals (People v. Dolley, supra, 40 Cal.4th at p. 469), the call was a recorded call (id. at p. 467), and the caller’s disclosure that he could see the drug activity in the alley from his window reasonably identified him as a neighbor whose identity might be tracked down by the police.
We conclude from our review of the totality of the circumstances that the police officers had a sufficient basis for entertaining a reasonable suspicion of defendant’s involvement in criminal activity. It was therefore constitutionally permissible for the police officers to stop and question defendant. (See Terry v. Ohio, supra, 392 U.S. at p. 30 [stop and frisk permitted where officers had reasonable suspicion criminal activity may be afoot].) When, in initially questioning defendant, the police officers were informed by defendant that he was on active parole status, they clearly had a sufficient justification to search defendant’s person and vehicle. (See People v. Sanders (2003) 31 Cal.4th 318, 333 [“A law enforcement officer who is aware that a suspect is on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the parolee”]; People v. Middleton (2005) 131 Cal.App.4th 732, 739 [officer’s awareness of active parole status provided sufficient basis for search]; Penal Code section 3067 [all California parolees are subject to search condition].) For all of these reasons, the trial court correctly denied defendant’s motion to suppress evidence.
Defendant’s appellate counsel argued we must constrain our analysis solely to the information received by the officers in the field as conveyed in the dispatch. (See People v. Jordon, supra, 121 Cal.App.4th at p. 560, fn. 8.) We find it unnecessary to address that question because, in the present case, the information in the dispatch itself was sufficient to make the Terry stop reasonable under the circumstances. As noted previously, the dispatch described the suspect as a Hispanic male, approximately 28 years old, medium build, 5 feet 11 inches tall, and wearing a white shirt and blue shorts. Additionally, the officers were told in the dispatch that the suspect “is selling drugs,” is “still there,” that a particular drug sale was observed “about 20 minutes ago” to a man in a black car with an identified license plate, and that there are “other subjects coming and going.” The precise description of suspect and his location, the rapid response time of the officers, and the reasonable indications in the dispatch of ongoing criminal activity, clearly justified the stop under the circumstances. That is, the information conveyed in the dispatch, and the fact that defendant matched as to physical description, location and time, gave a factual basis for a reasonable suspicion that defendant was engaged in criminal activity.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.