Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SA054348. Lawrence J. Mira, Judge.
Jeffrey S. Kross, 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, Senior Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant George Luis Aceves was charged with narcotics possession and two weapon violations. After defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant pled no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and the other counts were dismissed. Defendant was placed on felony probation for a period of three years.
Defendant timely appealed contending there was no reasonable suspicion justifying his detention and any evidence seized as a result was inadmissible. We affirm.
STATEMENT OF FACTS
At the corner of Reyes Adobe and Canwood Street in Agoura is one large parking lot split into east and west lots by a mini-mall, and a barrier traversable only by foot. The mini-mall store fronts face the east lot. There is a Salvation Army Store located at approximately the mini-mall’s midpoint. The rear of the mini-mall is only accessible by vehicle through the west lot. The Mediterranean Building is on the western most side of the west lot across from the back of the mini-mall which runs along the lot’s eastern border.
A citizen informant, who identified herself and provided a return phone number, made a 911 call indicating she had heard a gunshot in the vicinity of the Mediterranean Building on September 21, 2004. At 10:53 p.m. on that date, Deputy Slutske of the Lost Hills Sheriff’s Department received a radio call indicating a citizen reported hearing a single gunshot behind the Mediterranean Building.
Deputy Slutske drove into the west lot through an entrance adjacent to the Mediterranean Building. He saw defendant and Shannon Weckhurst moving around a white Nissan parked along the back side of the mini-mall near the Salvation Army Store. The Nissan’s trunk and passenger door were open, with property strewn about it. The west lot businesses appeared closed to the public, and Deputy Slutske saw no one else on the lot. Attempting to reach the Nissan, Deputy Slutske exited the west lot and pulled into the east lot. However, he was unable to drive to the back side of the mini-mall from the east lot, so Deputy Slutske parked his vehicle at the barrier between the two lots and approached the Nissan on foot.
Deputy Slutske had his gun drawn when he spotted defendant near the Nissan and called out to him, asking to see his hands. Defendant appeared startled and was “sweating a little bit,” although it was not a warm evening. Defendant complied and approached Deputy Slutske’s vehicle. Deputy Slutske also called out to Weckhurst and she eventually walked toward the front of the vehicle. Deputy Slutske asked defendant and Weckhurst if they had heard any gunshots. Defendant answered in the negative, but Weckhurst answered in the affirmative.
Deputy Slutske remembered having his gun out and pointing it “down range” when he contacted defendant. Deputy Kurimoto, who had subsequently responded to the scene, recalled that none of the deputies had their weapons drawn. However, by the time Deputy Kurimoto exited his vehicle and approached, Deputy Slutske’s initial contact with defendant was complete and defendant had already started walking toward the police vehicle. Based on the facts presented, Deputy Kurimoto was not in a position to see whether Deputy Slutske had his gun drawn when the initial contact was made.
As defendant and Weckhurst were walking toward Deputy Slutske’s vehicle, Deputies Heinrich and Kurimoto pulled into the east parking lot and parked behind the vehicle. Deputy Slutske asked Deputy Kurimoto to watch the two suspects; Deputy Slutske walked toward the Nissan. Deputy Slutske observed a methamphetamine pipe on the vehicle’s floorboard through the open passenger door. He radioed Deputy Kurimoto to detain defendant.
After receiving defendant’s consent, Deputy Kurimoto searched his person and found a Ziploc baggie of methamphetamine in his front pants pocket. Deputy Slutske searched the vehicle and found a gun in a duffel bag.
DISCUSSION
In reviewing the denial of a motion to suppress, we defer to the lower court’s express or implied factual findings but review de novo whether the Fourth Amendment has been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The law guiding the constitutionality of detention as part of an investigative stop is well-established. The Fourth Amendment’s right to be free from unreasonable searches and seizures does not encompass temporary detainments based on an officer’s reasonable suspicion criminal activity is afoot. (Illinois v. Wardlow (2000) 528 U.S. 119, 123, citing Terry v. Ohio (1968) 392 U.S. 1, 30.) Our Supreme Court has clarified that a temporary detention comports with the Fourth Amendment’s reasonableness standard when the balance of the government’s interests in crime prevention, effective criminal investigations and officer safety outweighs a citizen’s right to be free from seizure under the circumstances. (People v. Glaser, supra, 11 Cal.4th at p. 365, citing Michigan v. Summers (1981) 452 U.S. 692, 702-703.) When the totality of the circumstances reveals, first, the officer had an objectively reasonable belief a crime has or will take place and, second, the suspect has been or will be involved in a crime, then the officer has sufficient reasonable suspicion to detain the suspect for a brief investigation. (People v. Wells (2006) 38 Cal.4th 1078, 1083.) That objectively reasonable belief cannot be a mere hunch or curiosity, but must consist of articulable and individualized facts relating to the suspect. (Terry v. Ohio, supra, 392 U.S. at p. 22; Illinois v. Wardlow, supra, 528 U.S. at pp. 123-124.) In a particularly dangerous or exigent circumstance, an officer may be allowed to rely on a lesser quality or quantity of information as the basis for his reasonable suspicion. (People v. Wells, supra, 38 Cal.4th at p. 1083.)
For the purposes of analyzing defendant’s detention, we examine the totality of the circumstances as known to Deputy Slutske at the time of the incident. In response to a citizen’s report of a possible gunshot, Deputy Slutske arrived at the general area described by the citizen with the objectively reasonable belief that a crime, perhaps of a violent nature, had or was about to occur. Reasonable suspicion “can arise from less reliable information than required for probable cause, including an anonymous tip.” (People v. Wells, supra, 39 Cal.4th at p. 1083, citing Alabama v. White (1990) 496 U.S. 325, 330.) Although the tip did not describe the shooter, it described the location of the shooting with particularity. Deputy Slutske responded to that location and saw defendant and Weckhurst, behaving in what can fairly be described as a suspicious manner given the location and time of night. “[W]here 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, supra, 38 Cal.4th at p. 1083.) Deputy Slutske reasonably approached and detained defendant as part of an investigation of a potentially dangerous situation. Deputy Slutske was reasonably entitled to determine if defendant and Weckhurst were armed. In addition, they posed a flight risk as they were standing near an open vehicle. Deputy Slutske was outnumbered and approaching on foot because his vehicle was parked in a different parking lot. The steps Deputy Slutske took to determine if defendant had any part in the shot fired produced more articulable and individualized facts, justifying a continuation of his investigation. Defendant and Weckhurst had a large amount of property strewn around an open car parked behind a closed store. Defendant appeared nervous when Deputy Slutske called out to him. Defendant and Weckhurst contradicted each other about hearing gunfire, although they were standing in the same parking lot where the shot was reportedly fired.
We disagree with defendant’s repeated assertion that Deputy Slutske responded to the wrong location. Regardless of whether the deputy knew the exact address of the Mediterranean Building, he encountered defendant in the Mediterranean Building’s general parking lot, a place consistent with defendant having fired the reported shots.
We disagree with defendant’s contention that his actions were consistent with innocent behavior and did not give rise to reasonable suspicion of criminal wrongdoing. As explained above, defendant’s suspicious behavior in the location of a recent report of a possible shooting supported a reasonable inference of criminal activity. The fact that defendant’s behavior might also be consistent with innocent activity does not render a temporary investigative stop unconstitutional. (People v. Souza (1994) 9 Cal.4th 224, 233.)
Defendant relies heavily on comparisons to Florida v. J.L. (2000) 529 U.S. 266 (J.L.)and People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia), to argue that Deputy Slutske lacked an individualized suspicion of any criminal wrongdoing. We find the factual circumstances in those cases entirely distinguishable. In J.L., the officers received an anonymous tip describing a young man on a street corner wearing a plaid shirt who was carrying a gun. The officers detained and searched J.L. without any corroboration of illegal activity. The court found the officers lacked a reasonable suspicion to detain and search J.L. because the stop was based entirely on an anonymous tip, lacking corroboration and having no predictive value. (J.L., supra, 529 U.S. at p. 272.)
The decision in J.L. is of little significance in this case, because the caller was not anonymous. To the contrary, the caller clearly identified herself and gave a return phone number. The considerations that apply to an anonymous, uncorroborated tip—including the potential for mischief and harassment—are simply not present in this case. (See J.L, supra, 529 U.S. at p. 272 .) A concerned citizen reporting an immediately dangerous situation does not present the same risk of a prank and warrants an officer, such as Deputy Slutske, to investigate. (See People v. Wells, supra, at pp. 1086-1087 [explaining that corroborated tips describing erratic drivers may be sufficient to establish an officer’s reasonable suspicion for an investigatory stop].) In any event, Deputy Slutske’s observations of defendant’s suspicious behavior provided a reasonable basis for investigating whether defendant had been involved in the shooting. Indeed, our Supreme Court has distinguished a descriptive tip of facially innocent behavior, like that in J.L., from tips requiring immediate police action to respond to a serious threat to public safety. (People v. Dolly (2007) 40 Cal.4th 458, 465-466 [“‘[A]llegations of the threatening use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action’ and ‘is materially distinguishable from the anonymous tip at issue in Florida v. J. L.,’ which involved only an allegation of a concealed weapon.’ [Citations.]”].)
Defendant’s reliance on Perrusquia is similarly misplaced. The officers in Perrusquia were patrolling a high-crime area looking for possible 7-Eleven robbers. All the officers knew was that there had been a string of 7-Eleven robberies in that neighborhood, but had no information about whether the 7-Eleven in question had been or was about to be robbed. The officers found Perrusquia outside an open 7-Eleven waiting in his car with his engine idling, but had no information tying Perrusquia to a particular crime. (Perrusquia, supra, 150 Cal.App.4th at pp. 230-231.) As the Perrusquia court found, the detention was based on a mere “hunch.” (Id. at p. 234.) In comparison, Deputy Slutske responded to a specific call involving potentially violent criminal activity. Also, defendant’s suspicious actions formed the basis for Deputy Slutske’s reasonable suspicion and investigation. Unlike the officers of Perrusquia, Deputy Stutske acted based on articulable and individualized facts, not a hunch.
Having found defendant was legally detained pursuant to an investigative stop under Terry, it follows that the contemporaneous plain-view discovery of the methamphetamine pipe on the Nissan’s floorboard supported its seizure and the search of defendant’s person and vehicle. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634 [“observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense”].) The seized contraband was not the product of an unlawful detention.
DISPOSITION
The judgment is affirmed.
We concur:
TURNER, P. J. MOSK, J.