Opinion
C040564.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD KENNETH BURRISE, Defendant and Appellant.
After his motion to suppress the evidence (Pen. Code, § 1538.5) was denied, defendant Richard Kenneth Burrise entered a negotiated guilty plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (c)(1)) in exchange for dismissal of the remaining count and allegation and a promise that he would not serve any time in state prison at the outset, but would serve eight months in county jail as a condition of probation. $ he court suspended imposition of sentence and granted probation for a term of five years subject to certain terms and conditions including 240 days in county jail.
Defendant appeals, contending the trial court erroneously denied his suppression motion. We will affirm.
FACTS
About 12:30 p.m. on December 10, 2001, Stockton Police Officer John Dorville, on duty as a motorcycle patrol officer, was traveling south on Burke Bradley and stopped in traffic near the intersection with Yokuts. A small green car headed in the opposite direction pulled up alongside him. The woman driver rolled down the window and told the officer that she had just seen a person "involved in a confrontation" and that the person possibly had a gun because he "kept gesturing inside his coat with his right hand as if he did have a gun," demonstrating the motion for the officer by reaching her right hand over to the left side of her chest. The officer did not ask nor did the woman say that she actually saw a gun. She did not say what the confrontation was about or who else was involved. She did not describe the person but said he was headed northbound on Burke Bradley, driving a maroon Ford Mustang and pointed to the Mustang traveling north in very heavy traffic about 100 feet away. The conversation with the woman lasted 15 to 20 seconds.
Officer Dorville turned around and followed the Mustang. The officer wanted to keep the Mustang in sight and believed he did not have time to talk to the woman any longer. He did not get her name, license plate number of her car or the make or model of her car. Officer Dorville radioed dispatch and requested that a marked patrol car make a traffic stop of the Mustang. Officer Dorville followed the Mustang for half a mile to a mile, during which time it turned two times. The officer never saw anything unlawful about the driving.
Stockton Police Officer Tom Walters, who was nearby, heard the radio message that Officer Dorville was following a vehicle "that was possibly CCW, meaning that there was a weapon in the vehicle." Officer Walters was in uniform and driving a marked patrol car. When defendant turned the Mustang into a parking lot and into a parking space, Officer Walters, with lights activated, parked 15 to 20 feet behind the Mustang. A motorcycle officer and another patrol car were also in the parking lot, all behind Officer Walters. Officer Walters got out of his car, stood behind his door and asked defendant, the driver of the Mustang, to get out of the car. Defendant did not immediately get out. He stayed in his car for about a minute. He struggled to remove his jacket and then placed it between the seats toward the back of the car. He then got out. Officer Walters had defendant step back to the patrol car. The officer pat-searched defendant, finding nothing, and put him, unhandcuffed, in the back seat of the patrol car. A juvenile female also got out of the Mustang. Defendant consented to a search of the car. A loaded handgun was found in the left inside pocket of the jacket. Officers also found in the same pocket small baggies of suspected methamphetamine. A scale was also found in the jacket.
At the scene, defendant asked that his car not be towed. He explained that the car belonged to his spouse and she did not know he sold drugs. En route to the police station, Officer Walters advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602]. Defendant explained that he found the gun near a mailbox by his house and that the methamphetamine was for his personal use. He had pulled into the parking lot to pay a bill.
Defendant moved to suppress all evidence and statements, claiming that the information from the unidentified woman, an anonymous tip, was insufficient to establish reasonable suspicion for detention, which invalidated defendants consent to search, as did the officers show of authority. The trial court disagreed and denied the suppression motion. The trial court found that the tipster met with the officer face to face; she exposed herself, risking the loss of her anonymity. The woman reported a confrontation and she demonstrated a person reaching for a concealed weapon. The officer must have found her credible because he immediately followed the Mustang. The trial court also determined that the officers actions of following and detaining defendant were further justified by defendants subsequent conduct of removing his jacket before getting out of his car. The trial court found defendants consent was voluntary and not coerced.
DISCUSSION
Defendant contends the trial court erroneously denied his suppression motion, arguing that the detention was not based on reasonable suspicion in that Officer Dorville received a report of conduct not amounting to a crime from an unknown, unaccountable tipster, which was not corroborated by any observations, thus vitiating his consent. We conclude the trial court properly ruled.
"In reviewing the trial courts ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 327.)
"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." (People v. Souza (1994) 9 Cal.4th 224, 231, 885 P.2d 982.)
"In order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.).) An objective standard applies, not the officers subjective beliefs at the time of the stop—that is, would a reasonable officer in a like position, drawing on training and experience, suspect that criminal activity has occurred, is occurring, or is about to occur, and that the person to be stopped is involved. (People v. Conway (1994) 25 Cal.App.4th 385, 388-389.) "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." (Tony C., supra, 21 Cal.3d at p. 893 .) "The 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 the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.]" (Id. at p. 894.)
"[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. [Citations.]" (People v. Miranda (1993) 17 Cal.App.4th 917, 926, italics omitted.)
In general, "private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. This does not, of course, dispense with the requirement that the informant—whether citizen or otherwise—furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and the named suspect was the perpetrator; and the rule also presupposes that the police be aware of the identity of the person providing the information and of his status as a true citizen informant." (People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal. Rptr. 629, 545 P.2d 1333 [probable cause to believe defendant guilty of offense based on information from a citizen informant].)
Here, the issue is whether Officer Dorville entertained a reasonable suspicion to detain defendant based on information from an unknown citizen informant that defendant had been involved in a confrontation, may be carrying a concealed weapon inside his jacket and was driving in heavy traffic about 100 feet ahead of the informant. Defendant argues that because the driver who provided the tip was unidentified, she was akin to an anonymous informer with untested and unknown reliability.
Defendant relies primarily upon Florida v. J. L. (2000) 529 U.S. 266 [146 L. Ed. 2d 254, 120 S. Ct. 1375] (Florida ). In Florida, an anonymous telephone caller reported to the police that a young Black man, wearing a plaid shirt and standing at a particular bus stop, was carrying a gun. Officers went to the bus stop and saw three young Black men, one wearing a plaid shirt. The officers approached the man in the plaid shirt, ordered him to put his hands up, conducted a patdown search and found a gun in his pocket. (Id. at p. 268.) Florida held that the gun was inadmissible. (Id. at p. 271.) "The officers suspicion that J. L. 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, [citation], an anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity . . . ." (Id. at p. 270.)
Defendant also cites People v. Saldana (2002) 101 Cal.App.4th 170 (Saldana). In Saldana, a deputy sheriff on patrol one evening received a "communication" that an anonymous tip had come in from a pay phone stating that a particular Ford automobile with a license plate ending in 319 was parked at a particular restaurant parking lot and that the driver had a gun and a kilo of cocaine. Thirty minutes earlier, the police department had received the same report from the same pay phone. The deputy sheriff went to the parking lot and saw the Ford automobile with the ending license plate numbers. He entered the entire license plate number in his terminal and it came back as registered to Jose Saldana at a particular address. When the deputy entered the address in his terminal, he received information that there was an outstanding $ 7,500 misdemeanor warrant for false identification for a person at that address. The person named in the warrant was Bernardo Moreno. He was described as being 27 years old, six feet three inches tall, weighing 170 pounds. Since no one was in the vehicle, the deputy waited in another parking lot. An hour later, defendant came out of the restaurant and got into the vehicle. The deputy followed defendant and requested backup because of the report of the gun. The deputy, with the assistance of other units, conducted a stop and a "felony extraction." A patdown revealed no weapons on defendants person. When asked his name, defendant replied, "Jose Saldana." He denied there was a gun in the automobile. He consented to a search of the automobile. The deputy found marijuana and methamphetamine in the car, but no gun. Defendant also had a large amount of cash on his person. The trial court determined that defendant was properly detained and his consent validated the search. (Id. at pp. 172-173.)
Finding the facts analogous to Florida, supra, 529 U.S. 266, the Court of Appeal in Saldana reversed, concluding that the anonymous tip was unreliable since it did not include "predictive information that could be corroborated by observation." (Saldana, supra, 101 Cal.App.4th at pp. 174-175, quoted material at p. 175.) Although the Ford automobile was where the tipster said it was parked, that information did not corroborate that there was any criminal activity, that is, that the auto contained a gun or cocaine. Nor was the defendants exiting the restaurant and driving away in the auto suspicious. The court further determined that the outstanding warrant did not corroborate anything and that the only nexus between the warrant and the automobile was an address. Because the consent was obtained during the illegal detention, it was tainted by the illegality. (Id. at pp. 175-176.)
Defendant complains that the trial court erroneously found the facts in People v. Coulombe (2000) 86 Cal.App.4th 52 (Coulombe) to be analogous. Defendant asserts Coulombe was incorrectly decided in light of Florida v. J. L. In Coulombe, the People challenged the trial courts ruling on a suppression motion wherein it concluded that a detention and patdown search of a person identified by two anonymous citizen informants as carrying a firearm were illegal. (Coulombe, supra, 86 Cal.App.4th at p. 54.) The officers relied on two independent tips, made within five to 10 seconds of each other, indicating that a man at a specified location, whom they described, had a gun. The tips were made by two unidentified citizens whose credibility the officers had an opportunity to evaluate since they were face to face. (Id. at pp. 54-55, 58.) Coulombe reversed, finding that the tips provided sufficient reliability to support the officers reasonable suspicion of criminal activity, that is, possession of a firearm in a large New Years Eve crowd, and the detention and patdown. (Id. at pp. 58-60.)
We find Coulombe analogous and persuasive, as is the concurring opinion of Justice Kennedy in Florida v. J. L., supra: "If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring." (529 U.S. at p. 276.)
Here, the tip was not provided over a telephone or otherwise completely anonymously. The tip was provided by a citizen informant who is generally considered reliable. The woman drove up alongside the officer and provided information that the driver of the Mustang only 100 feet away had been involved in a confrontation and that he acted as though he had a concealed weapon. The woman demonstrated defendants conduct of patting his chest during a confrontation. The woman was face to face with the officer who had an opportunity to evaluate her credibility. When she approached the officer, she did not know that the officer would not ask her name or otherwise obtain identifying information about her or her car. It can be inferred that the officer found her credible in that he immediately turned around and followed the Mustang and requested backup. That the officer did not spend time further questioning the woman was reasonable given the fact that the Mustang was 100 feet away, the officer had a reasonable suspicion to believe the driver was carrying a concealed weapon in his jacket, and there was heavy traffic at the time. The officer testified that he did not want to lose sight of the Mustang.
The trial court properly denied defendants suppression motion.
DISPOSITION
The judgment (order granting probation) is affirmed.
We concur NICHOLSON, J. and HULL, J.