Opinion
H043912
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO ARGUETA, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151972)
Following a court trial, defendant Alfredo Argueta, Jr., was convicted of carrying a loaded firearm (Pen. Code, § 25850, subd. (a)). The trial court also found that defendant was not the registered owner of the firearm (Pen. Code, § 25850, subd. (c)(6)). The trial court suspended imposition of sentence and placed defendant on probation. We conclude that the trial court erred when it denied defendant's motion to suppress evidence and reverse.
I. Statement of Facts
The statement of facts is based on the evidence presented at the hearing on defendant's motion to suppress evidence.
On November 19, 2015, an anonymous 911 caller reported that "a Hispanic male adult wearing a black hooded sweatshirt with the number 4 on it, black jeans, and white sneakers was walking up and down [on the 700 block of Orchard Street] looking into vehicles." Officers Corey Smith and Paul Charupoom responded to the call. At approximately 8:30 p.m., Officer Charupoom arrived at the scene shortly after Officer Smith had. It was dark. Officer Charupoom observed Officer Smith "contacting" three individuals, defendant, defendant's younger brother, Joey Argueta, and another male named Zavala in the driveway at 797 Orchard Street. Officer Charupoom recognized both defendant and his brother and he knew that they lived at the residence at 797 Orchard Street. Joey Argueta and Zavala were in front of the car in the driveway and defendant was on the other side of the car and closer to the door to the residence. According to Officer Charupoom, Joey Argueta matched the description given by the anonymous caller "exactly." Defendant was wearing a gray hooded sweatshirt and dark pants.
When Officer Charupoom exited his vehicle, Officer Smith was explaining to the three men that "we received a call of a person walking up and down Orchard Street looking into vehicles wearing a black hooded sweatshirt with the number 4 on the back, black jeans, white sneakers, which was Joey Argueta. And at that time [defendant] asked if he was free to leave." Defendant had already given his name and date of birth to Officer Smith, which had been run through dispatch. Officer Smith told defendant that he was detained "until . . . he can determine [if] there's been a crime committed." When defendant started walking back towards the house, Officer Charupoom told him that he was detained and to stop. Defendant hesitated and continued toward his house until Officer Charupoom started walking towards him. Defendant stopped when the officer was approximately five feet away from him. Officer Charupoom "placed his hands on him to detain him" and moved him back towards Officer Smith and the other two detainees.
According to Officer Charupoom, "[u]sually if individuals are doing criminal activity they'll have a lookout. They always usually do criminal activity with more than just [one] person." Officer Charupoom, who had been a police officer for over 10 years, had previously been a gang officer and he knew that defendant was a Norteno gang member. He and Officer Smith had conducted probation searches of defendant's residence when defendant was on juvenile probation. Officer Charupoom has a "special concern" when he is dealing with a gang member, because "gang members are known to carry firearms to intimidate the population and witnesses." Both he and Officer Smith had also received "unconfirmed information that [defendant] was maybe in possession of a firearm earlier that month" during a briefing by one of their sergeants. Officer Charupoom has found that he is more likely to find weapons being possessed by gang members than people whom he did not believe are gang members. Thus, when defendant started walking toward his house, Officer Charupoom was concerned about officer safety. Officer Charupoom knew that an armed robbery had occurred in the area the previous week and that there had also been vandalism and thefts from vehicles. He knew that these types of activities involved people who possessed items that could be used as weapons.
Officer Charupoom pat searched defendant to "ensure that he was not carrying any contraband or weapons." The officer felt the shape of a firearm in defendant's front pocket. Officer Charupoom told Officer Smith about the firearm, handcuffed defendant, and seized the firearm.
II. Trial Court's Ruling
Following argument by counsel, the trial court stated: "In this case the officers reasonably responded as they should have and were duty bound to the 911 call. Upon seeing an individual matching the description exactly, and it is a detailed description, they make contact with that individual. A conversation took place at which point nobody was in custody. However, they were being detained for what I viewed to be an investigative detention which again is reasonable. We said it a million different ways by our cases, but a touchstone of the fourth amendment search and seizure is reasonableness. [¶] During that contact while the officers are trying to ascertain whether there was criminal activity or not, having an elevated level of suspicion given the matching description, that's when the defendant departed from the group and started to head to the house. [¶] That was in contradiction to the officer's directive to stay there. This was a temporary detention at that point which in this Court's view was entirely reasonable. [¶] When the defendant sought to leave, given all the information that the officer knew about the defendant, that reasonably justified further action on the officer's part given serious safety concerns. [¶] So the officer proceeded to detain the defendant, didn't handcuff him yet. He engaged in a pat search for officer safety purposes, felt the unique and telltale sign of a firearm, and the firearm was eventually found. [¶] The Court sees this as classic escalation of behavior resulting in an escalation of law enforcement involvement. Therefore, the motion is denied."
III. Discussion
Defendant contends that his detention was unlawful and thus the trial court erred when it denied his motion to suppress evidence.
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment. [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 120.)
The federal and state Constitutions prohibit unreasonable searches and seizures by the government. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. 1, § 13.) "A seizure occurs whenever a police officer 'by means of physical force or show of authority' restrains the liberty of a person to walk away. [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 229.) Here, there is no dispute that a detention occurred when the officers contacted the three men, including defendant, in the driveway of the Argueta residence.
At issue is whether the detention was reasonable. " '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. Casares (2016) 62 Cal.4th 808, 837-838 (Casares).) A person's presence in a high crime area, standing alone, is insufficient to justify a detention. (Brown v. Texas (1979) 443 U.S. 47, 52.) However, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) Moreover, "the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct." (In re Tony C. (1978) 21 Cal.3d 888, 894, superseded by statute on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.)
Relying on Florida v. J.L. (2000) 529 U.S. 266 (J.L.), defendant argues that his detention was unlawful because the officers lacked reasonable suspicion that he was engaged in criminal activity.
In J.L., supra, 529 U.S. 266, an anonymous caller reported that a young African-American male, who was standing at a bus stop and wearing a plaid shirt, was carrying a gun. (Id. at p. 268.) Two officers went to the bus stop and found three African-American males, including the minor, who was wearing a plaid shirt. (Ibid.) One of the officers detained the minor, searched him, and seized a gun. (Ibid.) The Florida court noted that "the officers' suspicion that [the minor] was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, . . . 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' [Citation.]" As we have recognized, however, 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.]" (Id. at p. 270.) The court explained: "An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Id. at p. 272.) Thus, the court held that the anonymous tip did not justify the detention. (Id. at p. 274.) However, the court also acknowledged that there might be "circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability," such as tip that a person is carrying a bomb. (Id. at pp. 273-274.)
Two subsequent cases considered circumstances, as in the present case, in which the anonymous caller used the 911 system. In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), an anonymous caller to 911 reported that "a light-skinned African-American male had 'just pulled a gun' on him" and mentioned a gang name. (Id. at p. 462.) The caller noted that the perpetrator had a bandage on his hand as if it had been broken and was sitting in his vehicle. The caller also described the perpetrator's vehicle as well as its location. (Ibid.) Six or seven minutes after the call, the officers located the vehicle. (Ibid.) The defendant was sitting in the driver's seat and matched the description provided by the caller. (Ibid.) The court focused on the following factors: "the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller's sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes." (Id. at p. 471.) Thus, the court concluded that "[u]nder the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention . . . ." (Ibid.)
In Navarette v. California (2014) 572 U.S. ___ , a 911 caller reported that a vehicle had run the caller off the road and she provided a description of the vehicle and its location. (Id. at pp. ___, ___ [134 S. Ct. at pp. 1696-1687].) Within approximately 20 minutes, an officer stopped the vehicle and arrested the defendant. (Id. at p. ___ .) At issue was whether the officer had reasonable suspicion that the defendant was involved in criminal activity. The Navarette court noted that " 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' [Citation.]" (Id. at p. ___ .) The court concluded that the 911 call was sufficiently reliable to allow the officer to act on the content of the tip. First, the caller claimed that she had witnessed the alleged dangerous driving. (Id. at p. ___ .) Second, the officer confirmed the vehicle's location approximately 18 minutes after the 911 call and a "contemporaneous report has long been treated as especially reliable." (Ibid.) Third, the caller used the 911 emergency system, which allows "identifying and tracing callers, and thus provide[s] some safeguards against making false reports with immunity." (Ibid.) The Navarette court also concluded that the 911 report created a reasonable suspicion of an ongoing crime and thus the stop was reasonable under the circumstances. (Id. at pp. ___, ___ [134 S. Ct. at pp. 1690-1692].)
Here, the 911 caller reported the attire and location of Joey Argueta as he was walking up and down the street looking into vehicles. In contrast to Dolly and Navarette, the caller did not report criminal activity by Joey Argueta. However, even assuming that a person looking into vehicles indicates that he is preparing to engage in criminal activity, the officers did not observe such conduct by Joey Argueta. Nor did Joey Argueta's activity pose a significant danger to either the caller or the general public, thus distinguishing it from the conduct reported in Dolly and Navarette. More significantly, the subject of the tip was not defendant. The anonymous caller referred to only one suspect, Joey Argueta, and did not indicate that he was accompanied by any other individuals. The reasonable suspicion standard requires "suspicion that the particular individual being stopped is engaged in wrongdoing." (United States v. Cortez (1981) 449 U.S. 411, 418.) Officer Charupoom's testimony that "[u]sually if individuals are doing criminal activity they'll have a lookout" was mere speculation as to defendant's involvement. (See Illinois v. Wardlow, supra, 528 U.S. at p. 124 [officer must be able to "articulate more than an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity" by person detained].) In contrast to Dolly and Navarette, there is also nothing in the record to indicate how quickly the officers responded to the location after the anonymous call was made. In addition, though the officers knew that thefts from vehicles had previously occurred in the area of Orchard Street, the record does not indicate when such thefts occurred. Based on the totality of the circumstances, we conclude that the officers lacked sufficient specific articulable facts that defendant was involved in criminal activity. (Casares, supra, 62 Cal.4th at pp. 837-838.) Accordingly, the trial court erred when it denied defendant's motion to suppress evidence.
Since we have concluded the detention was not reasonable under the federal and state Constitutions, we do not consider defendant's contention regarding the competency of trial counsel. --------
IV. Disposition
The order is reversed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.