Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. YJ26592. Stephanie M. Davis, Referee. Reversed.
Debbie M. Page, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ASHMANN-GERST, J.
Douglas F., a minor, appeals from an order denying his motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1, and keeping him a ward of the court pursuant to section 602 by reason of his having been a minor in possession of a deadly or dangerous weapon, a misdemeanor, in violation of Gardena Municipal Code section 9.36.030. The juvenile court ordered minor suitably placed, with a maximum term of confinement of three years two months. Minor contends that the juvenile court erred in denying his motion to suppress evidence.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 2005, the district attorney filed a petition under section 602 alleging that minor was in possession of a deadly or dangerous weapon, a misdemeanor under the Gardena Municipal Code.
Minor made a motion to suppress evidence pursuant to section 700.1 which was heard concurrently with the adjudication hearing. Pursuant to stipulation, the police report of the Gardena Police Department was admitted in evidence in lieu of live testimony. The parties also stipulated to the testimony of Officer Villanueva. The evidence at the joint hearing was as follows:
On September 26, 2005, at approximately 6:00 p.m., Gardena Police Department officers responded to a dispatch call stating that “6 male Blacks” had been physically fighting in the Big Lots parking lot on Rosecrans Avenue. Dispatch further indicated that the subjects left the location and were running west on Rosecrans Avenue.
Officer Heitmeyer arrived at the scene and spoke with three “possible witnesses,” one of which was minor. After speaking with them, they left, walking south on Crenshaw Boulevard. An individual approached the officer and told him that one of the three individuals he had just spoken with had a gun. No further description or details were provided, and the informant left without identifying himself or herself because he or she did not want to get involved.
Officer Villanueva was traveling north on Crenshaw Boulevard when he saw minor and two other males matching the description he received of the individuals who had been fighting at Big Lots. Unaware that Officer Heitmeyer had just spoken with them, he detained them.
Officer Heitmeyer arrived at the location where Officer Villanueva was detaining the three individuals and told Officer Villanueva that one of the subjects had a gun. “Due to the fact that the 3 subjects matched the description the [informant gave,] Officer Heitmeyer and Officer Villanueva conducting [sic] a pat down search for weapons on the subjects.” Officer Heitmeyer asked minor if he had any weapons, to which he affirmatively responded. Officer Heitmeyer recovered a black, unloaded, air-pressure BB gun in minor’s waistband. When minor was booked, officers found BB pellets in his pants pocket.
This statement in the police report is curious, as Officer Heitmeyer had detained the three individuals minutes before and hence knew who they were. The informant did not describe them to him.
Officer Villanueva would have searched the three individuals whether or not he had spoken to Officer Heitmeyer and learned of the informant’s tip.
The juvenile court denied minor’s motion, concluding that because Officer Villanueva was going to conduct a patdown search before Officer Heitmeyer arrived, it was inevitable that the BB gun would have been found even without the informant’s statement. Based upon the same evidence, it sustained the petition and terminated minor’s previous order of home probation. It ordered minor suitably placed, subject to the previous conditions that had been imposed, with the additional condition that he not be in possession of any dangerous or deadly weapon and not remain in the presence of anyone he knew to be in possession of a deadly or dangerous weapon.
DISCUSSION
Minor contends that the juvenile court erred in denying his motion to suppress. He argues that neither Officer Heitmeyer nor Officer Villanueva had a reasonable suspicion based on articulable facts to justify his detention. Officer Heitmeyer’s suspicion was based upon an uncorroborated anonymous tip, and Officer Villanueva’s on an uncorroborated, over-general description of the suspects as “six male Blacks” in a police radio dispatch. Minor further argues that his admission that he possessed a BB gun was the fruit of the illegal detention and inadmissible because he did not receive a Miranda warning before being questioned.
Miranda v. Arizona (1966) 384 U.S. 426 (Miranda).
A. Standard of review
We review an order denying a motion to suppress evidence in the light most favorable to the trial court’s ruling and (People v. Miranda (1993) 17 Cal.App.4th 917, 922) evaluate challenges to the admissibility of the evidence under federal constitutional standards. (Cal. Const., art. I, § 28, subd. (d); People v. Woods (1999) 21 Cal.4th 668, 674.) We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether the facts render the search or seizure reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also In re Brian A. (1985) 173 Cal.App.3d 1168, 1173.) Where the facts bearing on the legality of a challenged detention are undisputed, we are confronted with a pure question of law. (People v. Ramirez (1996) 41 Cal.App.4th 1608, 1613.)
The facts here are undisputed because the evidence was based exclusively on a police report admitted in evidence by stipulation and the stipulated testimony of Officer Villanueva that he would have searched minor even without receiving information from Officer Heitmeyer.
B. Detention based on police dispatch information
In order to avoid hamstringing police officers in performing their charge of protecting the public, circumstances short of probable cause for an arrest may justify a temporary detention of a person by a peace officer for investigation and questioning. (People v. Manis (1969) 268 Cal.App.2d 653, 658.) Such a stop only requires a “‘reasonable suspicion’” that the person has committed, or is about to commit a crime. (People v. Bennett (1998) 17 Cal.4th 373, 386-387; Florida v. Royer (1983)460 U.S. 491, 498 .) An officer has a reasonable suspicion when he is able to point to specific, articulable facts that, considered in light of the totality of the circumstances, provide an objective manifestation that the detained person may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) Where conduct is consistent with either criminal or lawful activity, the police officer is justified in approaching and questioning in order “to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. . . . [Citations.]” (In re Tony C. (1978) 21 Cal.3d 888, 894, superceded on other grounds by Cal. Const., art. I, § 28.) Once a lawful detention has been effected, an officer can conduct a patdown search for weapons for officer safety. (People v. Thurman (1989) 209 Cal.App.3d 817, 821, 823; Terry v. Ohio (1968)392 U.S. 1, 27 (Terry).)
Officer Villanueva’s detention of appellant was unlawful, as there were insufficient articulable facts to create a reasonable suspicion minor was engaged in, or about to engage in, criminal activity. Officer Villanueva was traveling north on Crenshaw Boulevard and “saw three subjects matching the description of the subjects fighting at Big Lots.” But the only description he had of the suspects in the Big Lots fight, which he received from dispatch, were that they were six male Blacks, who had left the fight location and were “running” west on Rosecrans Avenue. He stopped three male Blacks, not running or otherwise doing anything suspicious. Other than their race, Officer Villanueva had no knowledge of their physical description; he did not know their approximate age, their height, weight or what they were wearing. He had no information that minor had a gun. The detention occurred at approximately 6:00 p.m., not in the middle of the night when the streets are generally empty and one might infer that a group of individuals close to the location of a crime might be involved in the suspected criminal activity. There was no evidence of the amount of time that had elapsed between the incident and minor’s detention or how far he was from Big Lots when detained, and hence whether he was at a location that was even consistent with his having been at Big Lots at the time of the fight. Consequently, we conclude that minor was stopped principally because of his gender and race, insufficient bases for doing so.
Even if we were to conclude that the information Officer Villanueva received from dispatch was sufficient to justify detaining minor and his associates, there is yet another legal hurdle that the prosecution cannot surmount. ‘“[I]f the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court . . . evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony or, at the very least, that such officer was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention.’” (People v. Lazanis (1989) 209 Cal.App.3d 49, 62; see also People v. Aldridge (1984) 35 Cal.3d 473, 478; Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667.) Officer Villanueva had no personal information of anything related to the participants in the fight at Big Lots. The dispatcher or person in police channels who obtained the information was required to establish the credibility of the information. No such testimony was provided and hence the information from the dispatcher was insufficient to provide a reasonable suspicion.
C. Detention based on informant’s tip
Officer Heitmeyer joined Officer Villanueva at the location where minor and his two associates were being detained and reported that an informant said that one of the three had a gun. This information was insufficient to establish a reasonable suspicion to detain appellant or to search him for a weapon.
In evaluating the value of the informant’s information, we must first determine the type of informant with which we are dealing. A citizen informant is a witness to a crime “‘who is motivated by good citizenship and acts openly in aid of law enforcement.’” (People v. Galosco (1978) 85Cal.App.3d 456. 461.) “In the case of confidential citizen informers, the mere fact that they make their identity known to the police is, itself, some indication of their honesty. [Citation.] A further indication of reliability is that by identifying themselves to the police they expose themselves to potential liability for malicious prosecution or false reporting of a crime if their information proves to be false. [Citation.] Furthermore, by identifying themselves, these citizen informers afford the police the opportunity to check on matters affecting their credibility such as the existence of a criminal record and whether they had previously supplied information to the police.” (People v. Kershaw (1983) 147 Cal.App.3d 750, 756.) Consequently, a citizen informant is presumptively reliable even though reliability has not previously been tested so that corroboration of their information is unnecessary when it is based upon the informant’s personal observations of the commission of a crime. (People v. Lombera (1989) 210 Cal.App.3d 29, 32,citing People v. Hill (1974) 12 Cal.3d 731, 761.)
An informant who does not identify himself or herself to police is an anonymous informant who does not qualify as a citizen informant. (See People v. Galosco, supra, 85 Cal.App.3d at p. 461.) A tip from an informer unknown to police, absent a pressing emergency, cannot establish reasonable cause without corroboration. (Wilson v. Superior Court (1956) 46 Cal.2d 291, 294.) It is impossible to tell if that person was a “disinterested citizen, a stool pigeon, or even someone involved in the crime.” (People v. Abbott (1970) 3 Cal.App.3d 966, 970.)
The informant here was anonymous. That person did not want to become involved and did not identify himself or herself, beyond merely speaking to the officer face-to-face. This did not provide enough information about the informant to allow that person to be called to account for the information provided should it turn out to be untrue. Thus, that informant’s credibility was questionable and the information the informant provided was uncorroborated. That person “‘“neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant]”’ and that the report did not show ‘“that the tipster ha[d] knowledge of concealed criminal activity.”’” (See People v. Dolly (2007)40 Cal.4th 458, 469-470 (Dolly).) Neither the informant nor the informant’s information had any indicia of reliability. Consequently, it was insufficient to provide a reasonable suspicion for an investigatory detention.
Given our conclusion that the information provided by the informant was insufficient to establish reasonable suspicion, we need not consider whether the illegal detention by Officer Villanueva could have been transformed into a legal detention if the additional facts were sufficient.
We agree with minor that the United States Supreme Court’s decision in Florida v. J.L. (2000) 529 U.S. 266(J.L.) is controlling. There, an anonymous caller reported to the police that a young Black male standing at a specified bus stop and wearing a plaid shirt was carrying a gun. The police had no information about the informant. Sometime after receiving the tip, two officers responded, arriving at the bus stop about six minutes later and seeing three Black males “‘just hanging out.’” One of the three was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct as they did not see any firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up, frisked him and seized a gun from his pocket. (Id. at pp. 268-269.) J.L., who was 15 years old, was charged with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. (Id. at p. 269.)
The Supreme Court held the search invalid under the Fourth Amendment, stating: “We speak in today’s decision only of cases in which the officer’s authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability . . . does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.” (J.L., supra, 529 U.S. at p. 274.) The tip itself seldom demonstrates the basis of the informant’s knowledge or veracity. (Id. at p. 270.) Where the suspicion that a defendant is carrying a weapon does not arise from the officer’s own observations, but from an anonymous tip, moderate indicia of reliability of the tip must be established. (Id. at pp. 270-271.) The tip in J.L. lacked sufficient indicia of reliability to establish reasonable suspicion to make a Terry stop as it provided no predictive information to provide the police with a means of testing the informant’s knowledge or credibility. “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.” (J.L., supra, at p. 271.) The Supreme Court rejected Florida’s argument that the tip was reliable because its description of the suspect’s visible attributes proved accurate, there was a young Black male wearing a plaid shirt at the bus stop, concluding that the “tip [must] be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Id. at p. 272.)
In the matter before us, there was even less corroboration of the reliability of the informant’s tip than in J.L. The informant merely told Officer Heitmeyer that one of three persons had a gun, failing to indicate which of the three. The informant gave no indication of how he or she knew that one of the three persons interviewed by Officer Heitmeyer had a gun.
Numerous cases support our conclusion that an anonymous tip concerning the possession of a concealed weapon, “without more,” does not present an emergency situation involving an immediate danger to human life that justifies a detention. (People v. Jordan (2004) 121 Cal.App.4th 544, 562-564 [anonymous tip that suspect possessed a concealed weapon insufficient to justify detention]; People v. Saldana (2002) 101 Cal.App.4th 170, 175 [same]; Dolly, supra, 40 Cal.4that pp. 465-466.)
The People argue that People v. Coulombe (2000) 86 Cal.App.4th 52 “supports a finding that Officer Heitmeyer acted lawfully.” It does not. In that case, two anonymous citizen informants separately, within seconds of each other, approached officers during a New Year’s celebration, pointed to a restaurant 75 feet away and said that a man there, wearing a white cap, had a gun. The officers approached the restaurant and observed a man wearing a white cap seated in a wheelchair. When asked, he denied having a gun but clutched his pants. The officers conducted a patdown search and found a gun in his pocket. (Id. at pp. 54-55.) The Court of Appeal found the detention and patsearch to be reasonable and justified.
People v. Coulombe provides no support for the ruling here. In that case, the officers received two independent tips that the suspect had a gun. Since there was no relationship between the informants, each tip corroborated the other, providing a measure of reliability. Further, when approached, the suspect clutched his pants, giving additional confirmation to the tips. Here, there was only one tip by an unidentified informant and nothing done by minor to corroborate the information that he had a gun.
The People’s reliance on People v. Mayfield (1997) 14 Cal.4th 668, 791 is similarly misplaced. In that case, a police officer was dispatched to a service station to investigate a problem. There, a man told him that “‘they’ were ‘after’ him and ‘going to kill’ him.” He pointed to defendant and another man and said defendant had a gun. The officer spoke with the other man and then told defendant to stop and talk to them. The encounter led to the defendant grabbing the officer’s gun and shooting him. Our Supreme Court concluded that the informant’s tip was sufficient to justify the officer’s attempt to detain the defendant because an emergency situation, ongoing at the time that the informer gave the information to the officer, mandated immediate action and gave greater credence to the tip. No such exigency existed here. Minor was not making threats, brandishing the weapon or engaging in any menacing behavior.
Finally, the recent California Supreme Court decision in Dolly is also inapposite. There, a tip was received from an anonymous telephone caller that a light skinned Black man with what appeared to be a broken arm was sitting in a black Nissan and had threatened the informant with a gun. The court concluded that “an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is . . . sufficient to justify an investigatory detention.” (Dolly, supra, 40 Cal.4th at p. 461.) The threatening use of a weapon weighs heavily in determining whether an anonymous tip may justify a detention, whereas the possession of a concealed weapon does not. (Ibid.)
Here, unlike in Dolly, there were no threats by minor, no menacing conduct, and no vehicle involved which could provide for a rapid escape. But for the tip, there was absolutely no evidence minor possessed a gun.
D. Legality of patdown search
Having concluded that minor’s detention was illegal, we need not reach the issue of the legality of the patdown search. (People v. Aldridge, supra, 35 Cal.3d at pp. 480-481 [“Because the detention was unlawful, defendant’s motion to suppress . . . should have been granted. In view of our conclusion that the detention was invalid, we need not reach the issue of the legality of the pat-down”].)
E. Admission by Minor
After Officer Heitmeyer arrived at the location where Officer Villanueva was detaining minor, he asked minor if he had any weapons, to which minor responded that he did. This admission would not be excluded unless it was the result of minor’s illegal detention. (Rawlings v. Kentucky (1980) 448 U.S. 98, 106.) To determine whether minor’s admission must be excluded, we ask “‘“whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”’ [Citations.] The degree of attenuation that suffices to dissipate the taint ‘requires at least an intervening independent act by the defendant or a third party’ to break the causal chain in such a way that the [incriminating evidence] is not in fact obtained by exploitation of the illegality. [Citations.]” (People v. Sims (1993) 5 Cal.4th 405, 445; People v. Medina (2003) 110 Cal.App.4th 171, 177-178.)
We do not consider whether the admission would be excluded as a Miranda violation, as minor did not assert such a violation in the trial court and hence failed to preserve that claim for appeal. (See In re Dennis M. (1969) 70 Cal.2d 444, 462; see also People v. Mitchell (1990) 222 Cal.App.3d 1306, 1311; People v. Amos (1977) 70 Cal.App.3d 562, 568.)
“‘The question whether a confession is the product of a free will . . . must be answered on the facts of each case. No single fact is dispositive. . . . The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.’” (Rawlings v. Kentucky, supra, 448 U.S. at pp. 106-107; see also Brown v. Illinois (1975) 422 U.S. 590, 603-604.)
Here, the prosecution failed to carry its burden of establishing that the taint of minor’s illegal detention had been dissipated by intervening circumstances. Minor received no Miranda warning between the time of his detention and his admission. The admission was not spontaneous, but in response to the question by Officer Heitmeyer whether he had any weapons. The question itself was based upon the uncorroborated information the officer received from the anonymous informer. It also appears that minor’s admission followed within a very few minutes of his detention. Further, it surely must have been intimidating to the youth to be stopped and confronted by two officers, one of whom had previously spoken to him and then followed him from the location of their previous conversation. The police conduct here reflected that the decision to stop minor was based almost exclusively on his race and gender.
“Examination of cases where a defendant’s statements or other evidence are held admissible due to attenuation reveals that such evidence is typically the product of happenstance, but not the desired result of official misconduct.” (Lozoya v. Superior Court (1987) 189 Cal.App.3d 1332, 1345 and cases discussed therein.) For example, in Rawlings v. Kentucky, supra, 448 U.S. at page 108, the “petitioner’s admissions were apparently spontaneous reactions to the discovery of his drugs” in a purse belonging to a third party, and as such “weigh[ed] heavily in favor of a finding that petitioner acted ‘of free will unaffected by the initial illegality.’” (Ibid.) Unlike these cases, minor’s admission was not spontaneous or the result of happenstance, but was a direct result of his detention and Officer Heitmeyer’s question seeking to corroborate the anonymous informant’s tip.
DISPOSITION
The order appealed from is reversed.
We concur: BOREN, P. J., DOI TODD, J.