Opinion
C082453
06-30-2017
In re E.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.N., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV137953)
Minor E.N. appeals from the denial of his suppression motion. He was detained and found with a concealed knife after a citizen informant told police someone in a group, consisting of minor and three other teens, had threatened her husband because of her husband's red hat. Minor contends the citizen informant's report to the officer did not give rise to reasonable suspicion of ongoing criminal activity and thus did not justify minor's detention.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A police officer was patrolling Howe Park in the late afternoon. He was driving his black and white marked patrol vehicle on the pedestrian walkway, when he saw a group of four teenagers in the park. He watched them "eyeballing" him as they ducked out of the park. Initially, the officer thought nothing of it because this behavior was not unusual.
Just then, the officer was waved down by a woman in the park, who was having a barbecue with her family. She ran up and pointed to the four teenagers leaving the park and said they had tried to start a fight with her husband because her husband was wearing a red hat. She said one of the teenagers had gotten on a cell phone and told her he was calling his "homies over" to "handle business" and start a big fight. The woman pointed to her party, and the officer could see them gathered at their table.
The woman did not say which of the four teens had threatened her husband, nor did she mention if they were armed. The officer did not get the woman's name, nor did he come back later for it. In all, he spoke to her for not more than 30 seconds. And at the suppression hearing, the officer described the encounter with the woman as an "anonymous contact."
Throughout the exchange, the officer could still see the teens. They had reached the street, adjacent to the park. The officer circled his car around the park and drove in the teenagers' direction.
Approaching the four teens, the officer asked them to step to the front of his patrol car and show their hands. Instead, minor reached for his waistband. He held his waistband and bent over as though he was concealing something or keeping something from falling from his pants. He was the only one not complying with the officer's command to show hands. The officer was suspicious and concerned for his safety.
The officer placed minor in a control hold by grabbing minor's hand and placing it in a twist lock. The officer asked if he had anything on him. Minor said he had a knife in his front jeans pocket. The officer removed a knife with a six-inch fixed blade in sheath from minor's pants pocket and arrested him.
Before trial, minor moved to suppress the knife. The trial court denied the motion, noting the officer was within his rights to perform a Terry stop based on the information from the park patron. And the officer had acted reasonably in stopping the teens and trying to freeze the scene by asking them to show their hands. The officer reasonably believed minor might be concealing something and acted reasonably in placing minor in a control hold. At that point, the officer was within his rights to ask about weapons, leading to the knife's discovery.
Terry v. Ohio (1968) 392 U.S. 1 .
DISCUSSION
On appeal, minor contends the trial court erred in denying his motion to suppress. He argues the informant's report to the officer did not raise reasonable suspicion of ongoing criminal activity and thus did not justify his detention. Based on the totality of the circumstances, we conclude the officer was justified in detaining minor and thereafter searching him for weapons.
In reviewing a ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, when supported by substantial evidence, but we exercise our independent judgment in determining whether, on the facts so found, the search or seizure was lawful. (People v. Redd (2010) 48 Cal.4th 691, 719.)
Preliminarily, the parties disagree on whether the officer acted on an anonymous tip. The People argue the tip was not anonymous because the officer met personally with the informant, who demonstrated her personal knowledge of the situation. The People maintain the contact is not anonymous merely because the officer did not record the contact's personal information. On this point, we disagree with the People.
Here, the officer testified the informant was an "anonymous contact." We think that a fair characterization. (See People v. Abbott (1970) 3 Cal.App.3d 966, 971 ["the rationale for the citizen informer rule requires knowledge of the 'citizen's' identity"]; People v. Galosco (1978) 85 Cal.App.3d 456, 461 [an informant who does not identify himself to the police is an anonymous informant]; Black's Law Dictionary (10th ed. 2014) [defining anonymous as "[n]ot named or identified"].) We will therefore proceed under the assumption the officer acted on an anonymous tip from a citizen informant.
In People v. Abbott, supra, 3 Cal.App.3d at page 968, a 12- or 13-year-old boy told police three men in the park had contraband. In response to the officers' questions, the boy described the men and brought the officers to the men's location—leading to the discovery of contraband. (Ibid.) But the boy left and his whereabouts and identity were unknown at the time of the preliminary hearing. (Id. at pp. 969, 971.) In concluding the boy was an anonymous informant, the court distinguished cases of citizen informants where the identity of the informer was known to the arresting officer. (Id. at pp. 970-971.)
"[R]easonable suspicion" necessary to justify a detention turns on the content and reliability of the information possessed by police. (Navarette v. California (2014) ___ U.S. ___ [134 S.Ct. 1683, 1687, 188 L.Ed.2d 680, 685-686] (Navarette).) " '[A]n anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' " (Id. at p. 1688.) "But under appropriate circumstances, an anonymous tip can demonstrate 'sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.' " (Ibid.)
Such indicia of reliability can be shown by an informant's claim of eyewitness knowledge or an informant's contemporaneous reporting of the events. (Navarette, supra, 134 S.Ct. at p. 1689 [a 911 caller reported being run off the road by a truck].) Other indicia of reliability include relatively precise and accurate descriptions given by the tipster (People v. Wells (2006) 38 Cal.4th 1078, 1088), as well as the caller supplying a plausible explanation for wanting to remain anonymous. (People v. Dolly (2007) 40 Cal.4th 458, 469 (Dolly).)
Here, the citizen informant's tip demonstrated sufficient indicia of reliability for the officer to credit her account. The informant approached the officer, spoke to him in person, and pointed to others she was with; the officer could see members of her party around a picnic table. Nothing indicated the informant wished to conceal her identity. Rather it appears she was anonymous only because the officer understandably left to pursue the teens, who were leaving the park, before taking her contact information. Under these circumstances, the possibility of a hoax or false tip was extremely unlikely. (Cf. Navarette, supra, 134 S.Ct. at p. 1689 [noting 911 emergency systems features for identifying and tracing calls provided safeguards against false reports].)
Moreover, the informant's tip was made contemporaneously and under circumstances suggesting eyewitness knowledge. The woman reported the teens to the officer, while they were still in eyesight. (See Navarette, supra, 134 S.Ct. at p. 1689 [reporting the incident soon after it occurred, is the sort of contemporaneous report that has long been treated as especially reliable].) And she appears to have been an eyewitness because she reported to the officer that one of the teenagers had gotten on a cell phone and told her he was calling his "homies over" to "handle business" and start a big fight. (Ibid. [eyewitness knowledge "lends significant support to the tip's reliability"].)
Accordingly, the tip demonstrated a high indicia of reliability and was sufficient to give rise to reasonable suspicion. Defendant, however, cites Florida v. J.L. (2000) 529 U.S. 266 (J.L.) in support of his challenge, asserting his detention was substantially similar to J.L.'s. We are unpersuaded.
In J.L., an anonymous caller reported that a young black male, wearing a plaid shirt, and standing at a particular bus stop, was carrying a gun. (J.L., supra, 529 U.S. at p. 268.) There was no audio of the telephone tip, and nothing was known of the informant. (Ibid.) Officers arrived at the bus stop, six minutes later, and saw three black males, one with a plaid shirt. (Ibid.) The officers observed no suspicious behavior and had no reason to suspect illegal conduct. (Ibid.) Nevertheless, an officer told J.L. to put his hands up, frisked him, and found a gun. (Ibid.) The court held the anonymous tip lacked sufficient indicia of reliability and thus could not justify the stop and frisk. (Id. at p. 274.) It noted the officers' suspicions came solely from the tip—not from any observations of their own. (Id. at p. 270.) And the tip provided no predicative information, leaving the police without means to test the informant's knowledge or credibility. (Id. at p. 271.) It further explained, "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.)
J.L. is distinguishable. Here, unlike in J.L., the tip was reliable in its assertion of illegality. The tip was contemporaneous, based apparently on eyewitness knowledge, and anonymous only in the sense that the officer left before getting the informant's name. There is no evidence the citizen informant tried to conceal her identity, refused to give her identity, or left the park in an effort to avoid further contact with the officer. Further, the officer's suspicion was also supported by his own observation that the teens were "eyeballing" him as they ducked out of the park, a circumstance that objectively became important after the citizen informant's report. Additionally, the nature of the threat—a teen claimed he was calling his "homies" to start a big fight over a red hat—further distinguishes J.L. Contrary to minor's assertion, ongoing criminal activity may have been occurring. Consequently, immediate police action was required to investigate and the stop was reasonable. (Cf. Dolly, supra, 40 Cal.4th at p. 465 [noting a report of " '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.' "].)
We note that criminal activity need not be ongoing to justify a detention. A stop may be justified to investigate criminal activity that "has taken place or is occurring or about to occur." (In re Tony C. (1978) 21 Cal.3d 888, 893.) --------
In sum, the anonymous tip from the citizen informant demonstrated sufficient indicia of reliability to justify a Terry stop. Added to this information was the officer's own observation of the group "eyeballing" him and leaving the park as the officer arrived in his black and white marked patrol vehicle, just before he was flagged down by the citizen informant. Thus, the information known to the officer at the time of the stop provided an objectively reasonable suspicion that defendant and his group had been involved in criminal activity and that more trouble might be forthcoming if the group's "homies" showed up to "handle business." After the stop, the officer was justified in searching minor because of minor's furtive movements, suggesting he might be armed, and minor's admission he was indeed carrying a concealed knife. The trial court, thus, acted within its discretion in denying defendant's suppression motion.
DISPOSITION
The orders of the juvenile court are affirmed.
MURRAY, J. We concur: RAYE, P. J. BLEASE, J.