Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. TJ16649 Charles Q. Clay, III, Judge. Affirmed as modified.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Following the juvenile court’s denial of Eric C.’s (minor) suppression motion (Welf. & Inst. Code, § 700.1), minor admitted having committed certain offenses alleged in two petitions filed pursuant to section 602. From a petition filed May 29, 2007, minor admitted the unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) as a felony. From a petition filed July 6, 2007, minor admitted exhibiting a concealable firearm in public in violation of Penal Code section 417, subdivision (a)(2) as a misdemeanor. The juvenile court set minor’s maximum period of confinement at three years four months.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court declared minor a ward of the court pursuant to section 602 and placed his care, custody, control, and conduct under the supervision of the probation officer. Minor was permitted to return home in the custody of his mother under terms and conditions of probation.
Minor appeals on the grounds that: (1) his detention and arrest based on information from an anonymous tip must be suppressed, and (2) because minor was placed at home on probation, the juvenile court’s pronouncement of a maximum confinement time and the clerk’s minute order reflecting the pronouncement must be stricken.
FACTS
At the hearing on minor’s motion to suppress evidence, Deputy Dennis Salcedo of the Los Angeles County Sheriff’s Department testified that on May 24, 2007, at approximately 9:44 a.m., he went to the Park Village Apartments in the City of Compton. He had conducted investigations in the area and was aware it was known for gang violence, drug activity, graffiti, and vehicle theft. On that particular day, he received a call from a dispatcher who had an anonymous telephone caller on the line. The caller said that there were two male Hispanics, approximately 18 to 20 years old, sitting in a stolen vehicle. One was reportedly wearing a black hooded sweatshirt. The car was described as a burgundy, four-door, 1988 Toyota Camry with a license plate number of 5LWD415. When Deputy Salcedo drove into the one-way entrance of the apartment complex, the dispatcher informed him that the Hispanics had exited the car and had run away, jumping a fence.
Deputy Salcedo drove to the 1988 Toyota and was told by assisting units that two male Hispanics had been detained “right outside the apartment complex.” The two men matched the description and age reported by the caller, and one was wearing a black sweater. The dispatcher and the anonymous informant were still on the line, and the anonymous caller identified both detained Hispanic men as the ones who had been in the car. Deputy Salcedo identified minor as the detainee who was wearing a black sweater.
Deputy Salcedo’s record check on the Toyota revealed that it was a stolen car. The anonymous caller said that minor had been seated in the driver’s seat of the car, and the other suspect had been in the passenger seat. Deputy Salcedo did not recall the caller or any other deputy saying that minor was seen driving the vehicle, and the deputy did not see minor driving the vehicle.
DISCUSSION
I. Anonymous Tip and Motion to Suppress
A. Proceedings Below
At the hearing on minor’s motion to suppress evidence, defense counsel argued that “[t]his is a classic Florida versus J. L. issue.” (Florida v. J. L. (2000) 529 U.S. 266 (J. L.).) Counsel contended that the detention was unlawful because there was no evidence to corroborate the anonymous caller’s information.
After hearing argument, the juvenile court stated that it did not believe the instant case was controlled by J. L. The court believed J. L. was “more about the requirements for being able to—for an officer to conduct a Terry stop rather than simply to contact or otherwise detain a person.”
Terry v. Ohio (1968) 392 U.S. 1 (Terry).
The court referred to the factors set out in J. L. for assessing the reliability of an informant and noted that one fact is the specificity of the information supplied by an untested informant. The court stated that the informant here appeared to have been watching the two young men while he or she was on the telephone with the dispatcher. The informant described the make, model, color, and license number of the car and gave a “play by play” of what was occurring. If the deputy had approached the car when the two young men were inside, he would have elicited the same information and found out that the vehicle was stolen.
The trial court stated that the issue was whether the contact with the two young men on the basis of the informant’s phone call was proper, and the court believed it was. If the two young men had not fled, it would have been a consensual encounter. The suspects’ flight, combined with the information the officer possessed, gave the officer reasonable suspicion or even probable cause to detain the minors for further investigation, which is what appeared to have occurred in this case. The information relayed by the informant through the dispatcher had an air of reliability because of the specificity of the informant’s observations.
Defense counsel argued that the informant’s information did not apply to the initial detention outside the apartment complex of two random male Hispanics. The juvenile court responded that the description of two male Hispanics, approximately 18 to 20 years of age, with one wearing a black hooded sweatshirt, was a sufficient description of the two persons who were detained to reasonably satisfy the officers that they fit the description, although not specifically whether they were the culprits. The informant was able to view the detained persons, and he or she indicated they were the same men whom he or she had seen. The juvenile court found that, had they not been the same two men, it would not have been unlawful for the officers to briefly detain two other Hispanic men so as to allow the informant to view them and confirm whether they were the men who had been in the Toyota.
B. Argument
Minor contends the information from the anonymous informant was not reliable enough to provide reasonable suspicion for the detention, and minor’s motion to suppress was therefore erroneously denied. According to minor, the juvenile court’s reasoning was faulty, since the officers would have had no reasonable suspicion to approach the young men if it were not for the call from an informant, and the informant provided no information about the basis for believing the car was stolen or that these young men were involved in the theft. Minor maintains that the information provided by the informant in this case was remarkably similar to that provided by the informant in J. L., in which the Supreme Court held that a search was invalid because the anonymous tip did not contain the indicia of reliability required to provide the officer with reasonable suspicion that J. L. was carrying a gun. (J. L., supra, 529 U.S. at pp. 272-274.)
C. Relevant Authority
“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.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The guiding principle for evaluating the actions of the police officers is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” (Terry, supra, 392 U.S. at p. 19.) “[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Id. at p. 22.) There must be “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id. at p. 21, fn. omitted; People v. Glaser, supra, 11 Cal.4th at p. 363.)
D. Motion Properly Denied
On appeal, as in the trial court, minor relies on the aforementioned case of J. L. In that case, an anonymous caller told police that a young Black male standing at a particular bus stop in a plaid shirt was carrying a gun. The record indicated that nothing was known about the informant. At an unspecified time after receiving the tip, two officers responded to the bus stop and saw three Black males, one of whom was wearing a plaid shirt. Aside from the information in the anonymous tip, the officers had no reason to suspect any of the three men of illegal activity. The officers did not see a gun, and J. L. made no threatening or unusual movements. One of the officers told J. L. to put his hands up on the bus stop. The officer frisked J. L. and found a gun in his pocket. (J. L., supra, 529 U.S. at p. 268.) In finding the search of J. L. invalid, the Supreme Court explained, “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.” (Id. at p. 271.)
The Supreme Court distinguished J. L. from its prior holding in Alabama v. White (1990) 496 U.S. 325, 329-332 (White) where it held that there was sufficient corroboration of information provided by an unknown informant to permit a temporary detention. (J. L., supra, 529 U.S. at p. 271.) The Supreme Court acknowledged, quoting from White, 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.’ [Citation.]” (J. L., supra, at p. 270, quoting White, supra, at p. 327.) In White, before stopping the suspect’s car and receiving permission to search it, police were able to verify that the suspect was of the gender (female) given by the caller, and that she left from the building the caller named. The car she drove also met the tipster’s description, and she took a route that would lead to the destination the caller predicted. (White, supra, at p. 327.) Certain other facts related by the tipster were not corroborated, such as the suspect’s name and the apartment number of the unit she exited. (Id. at p. 331.) Notably, the suspect was supposed to carry a brown attaché case, but she entered the car empty-handed. (Id. at p. 327.) White held that it was a close case, but that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of the suspect’s car. (Id. at p. 332.)
The officers found a brown attaché case containing marijuana inside the car. (White, supra, 496 U.S. at p. 327.)
Thus we see that J. L. and White were concerned with Terry stop-and-search situations based solely on information obtained from an anonymous tip. Therefore, as the trial court stated, the instant case is distinguishable. Although an anonymous tip may, in some circumstances, not be sufficient for a reasonable officer to effect an investigatory stop and frisk, the totality of the circumstances in this case were enhanced by minor’s behavior.
It is true that an anonymous tip was the sole basis for what would have been an initial contact between Deputy Salcedo and minor while minor was sitting in the driver’s seat of a parked car. However, the United States Supreme Court has stated that mere interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. (INS v. Delgado (1984) 466 U.S. 210, 216.) “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means. [Citation.]” (United States v. Drayton (2002) 536 U.S. 194, 201.) A detention does not occur simply because a police officer approaches an individual and asks a few questions. (Florida v. Bostick (1991) 501 U.S. 429, 434.)
In this case, Deputy Salcedo could have approached the driver’s window of the parked Toyota and asked to see the driver’s identification without removing the situation from the realm of a consensual encounter. Although Deputy Salcedo may have suspected the car was stolen, pretext is permissible in most encounters between a police officer and an individual because the officer’s subjective intentions play no part in ordinary Fourth Amendment analysis. (People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1207.) The United States Supreme Court recently held that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ [Citations.] The officer’s subjective motivation is irrelevant.” (Brigham City v. Stuart (2006) 547 U.S. 398, 404.)
The reliability of the tip information does come into play, however, in the events that succeeded Deputy Salcedo’s attempt at contacting minor and his companion. Before Deputy Salcedo could make contact with minor, the two men in the Toyota fled as the deputy’s police car drove into the complex. The dispatcher, on the line with the informant, told the deputy that the car’s occupants had left the car, run away from that location, and jumped a fence. This fact, added to the detailed information received in real time from the informant, added to the totality of the circumstances justifying the minor’s detention “right outside the apartment complex.”
Here, the informant provided a precise description of the car, including the license plate number, and a detailed description regarding the suspects’ race, age, and clothing. In addition, the area in which the incident occurred was known for crimes including vehicle theft. (See People v. Limon (1993) 17 Cal.App.4th 524, 532 [the setting is a factor that may lend significance to a person’s behavior and, although it may not justify an arrest, it helps justify a detention].) The informant was located nearby and provided the information as events unfolded, adding to the reliability of the tip. Finally, minor’s flight added to the articulable facts in support of an objective belief that there was some criminal activity afoot involving minor. “Headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124; see also People v. Mims (1992) 9 Cal.App.4th 1244, 1249.) Flight is more than a mere refusal to cooperate and it allows “officers confronted with such flight to stop the fugitive and investigate further” without violating the individual’s right to “go about his business.” (Illinois v. Wardlow, supra,at p. 125.)
As Justice Kennedy remarked in his concurring opinion in J. L., “a tip might be anonymous in some sense yet have certain features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.” (J. L., supra, 529 U.S. at p. 275.) The tip in this case had “certain features” in support of its reliability, which made it more trustworthy and reliable than the anonymous tip in J. L. Add to this minor’s flight, and the totality of the circumstances leads to the conclusion that the deputies possessed specific, articulable facts that supported “‘a man of reasonable caution in the belief’” that the action he took was appropriate. (Terry, supra, 392 U.S. at p. 22.) The detention was lawful, and the court did not err in denying minor’s motion to suppress the evidence resulting from the detention.
II. Maximum Confinement Time
Citing In re Ali A. (2006) 139 Cal.App.4th 569 (Ali A.), minor contends that pursuant to section 726, subdivision (c), a maximum period of confinement may not be set when a juvenile is placed on home probation in a parent’s custody. Minor requests that we strike the juvenile court’s finding rather than remand. Respondent agrees that no maximum period of confinement should have been set and has no objection to its being stricken.
In Ali A., the court concluded that, since the minor had not been committed to the CYA or removed from the custody of his parents, neither section 731, subdivision (b) nor section 726, subdivision (c) was applicable. Therefore, the juvenile court was not required to set a maximum term of confinement and had no discretion to do so. (Ali A., supra, 139 Cal.App.4th at pp. 571, 573.) The Ali A. court simply affirmed the order of probation, finding that the maximum term of confinement contained in the dispositional order was “of no legal effect”—until such time as the minor violated the terms of his probation, underwent a new hearing, and was removed from his parents’ custody. (Id. at pp. 573-574.) We believe that in order to accurately record the punishment imposed upon minor at the dispositional hearing, the better practice is to strike the order setting a maximum term of confinement.
Section 726, subdivision (c) provides, in pertinent part: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code . . . .”
DISPOSITION
The order of wardship is modified by striking the order setting a three-year four-month maximum term of confinement. In all other respects, the order of wardship is affirmed. The juvenile court is directed to correct the minute order of the disposition hearing accordingly.
We concur: Acting P. J. DOI TODD J. ASHMANN-GERST
Section 731, subdivision (b), as modified effective January 1, 2004, provides, in pertinent part, that “[a] minor committed to the Department of the Youth Authority . . . may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court . . . .”