Opinion
G052516
01-25-2017
In re GILBERT Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GILBERT Z., Defendant and Appellant.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL049125) OPINION Appeal from orders of the Superior Court of Orange County, Lewis W. Clapp, Judge. Reversed and remanded with directions. Esther K. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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Gilbert Z. (Gilbert) appeals from a juvenile petition filed pursuant to Welfare and Institutions Code section 602. The petition arose from an incident where a police officer detained Gilbert based on an anonymous tip. On appeal, Gilbert challenges the juvenile court's denial of his motion to suppress evidence. We find that the evidence presented at the suppression hearing was insufficient to support the detention. The Attorney General concedes the error. Thus, we reverse the order of the juvenile court.
I
FACTS AND PROCEDURAL BACKGROUND
On January 18, 2015, Santa Ana Police Department Corporal Jaime Rodriguez was on patrol. Rodriguez had been a police officer for about 25 years and was supervising other officers. At about 6:45 p.m., he received a call from dispatch. An anonymous person had reported seeing four male Hispanic juveniles who were spray painting the walls on the west side of Fairview Street at First Street. They were described as 15 to 16 years old, wearing dark, baggy clothing. The group was last seen walking southbound on the west side of Fairview Street towards Highland Street.
Rodriguez and another officer each separately drove to the area. Seven to 10 minutes later, Rodriguez saw four male Hispanic juveniles wearing dark, baggy clothing walking southbound on the west side of Fairview Street. They were the only people Rodriguez saw out on the street. The group was crossing Highland Street, which is about a quarter to a half a mile from First Street.
Rodriguez stopped his patrol car along the curb, about five to 10 feet away from the group. He had activated the car's rear lights to alert the traffic coming from behind him. Rodriguez got out of the patrol car and asked the group to stop so that he could speak to them. The group continued to walk another five feet or so, then three of them stopped, but one continued walking. Rodriguez asked that person to stop, but he immediately ran into the street, across traffic, and into an apartment complex on the other side of the street. The other responding officer could not find the person who fled into the complex, nor did he later find any fresh graffiti on Fairview Street.
Rodriguez asked the three remaining individuals to sit on the curb. One of them was Gilbert, who immediately set a spray can down on the curb next to him while he was sitting down and then admitted to having a knife in his pocket. Rodriguez conducted a patdown search of Gilbert's cargo shorts and felt a long metal pry bar. Rodriguez also saw spray paint on the tips of Gilbert's fingers and "over-spray on his shorts."
The People filed a juvenile petition alleging Gilbert had falsely represented himself to a peace officer, possessed a prohibited weapon, and possessed graffiti tools. (Welf. & Inst. Code, § 602; Pen. Code, §§ 148.9, subd. (a), 22210, 594.2, subd. (a).)
Gilbert filed a motion to suppress evidence. (Welf. & Inst. Code, § 700.1.) Following a hearing, the juvenile court denied the motion. Gilbert later admitted the allegations contained in the petition and the parties filed a disposition agreement. Gilbert timely appealed from the ruling at the suppression hearing.
II
DISCUSSION
A review of a motion to suppress is a mixed question of fact and law. (People v. Alvarez (1996) 14 Cal.4th 155, 182-185.) "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
The Fourth Amendment prohibits seizures of persons, including temporary detentions, when they are unreasonable. (Terry v. Ohio (1968) 392 U.S. 1, 17, 20-21 (Terry).) However, "[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response." (Adams v. Williams (1972) 407 U.S. 143, 145.)
Thus, an officer may stop and briefly detain a person for questioning based on circumstances short of probable cause to make an arrest. (Terry v. Ohio, supra, 392 U.S. at pp. 21-22.) An officer's request to stop does not constitute a seizure; a subject must submit to the officer's request in order to be "seized." (California v. Hodari D. (1991) 499 U.S. 621, 625 [in order for a "seizure" to occur there must either be some application of "'physical force or a show of authority'" to which the subject yields].)
A temporary detention is reasonable when the "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.) Reasonable suspicion is "simply . . . 'a particularized and objective basis' for suspecting the person stopped of criminal activity." (Ornelas v. United States (1996) 517 U.S. 690, 696.) In determining whether a temporary detention is justified, "the totality of the circumstances—the whole picture—must be taken into account." (United States v. Cortez (1981) 449 U.S. 411, 417.)
Generally, an anonymous tip by itself will not be sufficiently reliable to justify a temporary detention. (Florida v. J.L. (2000) 529 U.S. 266, 270 (J.L.).) In J.L., "an anonymous caller reported . . . that a young black male standing at a . . . bus stop and wearing a plaid shirt was carrying a gun." (Id. at p. 268.) Sometime later, the police saw three black males at the reported location, only one of whom, J.L., was wearing a plaid shirt. One of the officers approached J.L., frisked him, and found a gun. (Ibid.) The Supreme Court held that: "The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." (Id. at p. 271.) The court concluded the information received by the police was insufficient to justify the "stop and frisk." (Id. at p. 274.)
However, if an anonymous 911 call creates a reasonable suspicion of an ongoing crime, an anonymous tip may be sufficiently reliable to justify a detention. (Navarette v. California (2014) ___ U.S. ___ [134 S.Ct. 1683, 188 L.Ed.2d 680] (Navarette).) In Navarette, an anonymous 911 caller reported that a driver of a Silver Ford 150 pickup truck with a specific license plate number had run the anonymous caller off the highway. (Id. at pp. 1686-1688.) Within 18 minutes, California Highway Patrol (CHP) officers spotted the truck near the reported location and followed it for about five minutes before pulling it over. As the responding officers approached the truck, they smelled marijuana. The officers searched the truck and seized 30 pounds of marijuana. The court approved of the detention (the traffic stop). (Id. at pp. 1687-1688.)
In Navarette, the United States Supreme Court reasoned that an "indicator of veracity" was "the caller's use of the 911 emergency system. [Citation.] A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity. [Citation.] As this case illustrates, 911 calls can be recorded, which provides victims with an opportunity to identify the false tipster's voice and subject him to prosecution, [citations]. The 911 system also permits law enforcement to verify important information about the caller." (Navarette, supra, 134 S.Ct. at pp. 1689-1690.) Further the court found that the specific and dangerous conduct reported by the anonymous caller bore "too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of reckless." (Id. at p. 1691.) For that reason, the Court concluded the officers were not obligated to follow the pickup truck at length in order to personally observe and corroborate the call of suspicious driving. (Id. at p. 1691.)
The issue of temporary detentions based on anonymous tips has also been addressed by the California Supreme Court. (People v. Wells (2006) 38 Cal.4th 1078 (Wells.) In Wells, an anonymous caller reported a "possibly intoxicated driver 'weaving all over the roadway.'" A few minutes later, a CHP officer located and stopped the vehicle. The officer did not personally observe the vehicle weaving or otherwise violating any traffic laws. (Id. at p. 1081.) However, pointing to the "exigent circumstances" created by drunk drivers on our roadways, the Supreme Court held the anonymous tip was itself sufficient to raise a reasonable suspicion justifying the traffic stop. (Id. at pp. 1083-1084.)
Unlike Navarette, the record in this case does not expressly indicate that the anonymous caller used the "911" emergency system to call the police. At the hearing, Rodriguez testified that he was in his police vehicle and that he "was responding to a call of vandalism involving several male subjects." The prosecutor asked: "And where did you get this call from?" Rodriguez responded: "It was dispatched to me." Rodriguez further explained that such a call "is computer generated. Each call that we receive is dispatched to our police vehicle via computer."
However, there was no additional evidence regarding the nature of the initial anonymous tip. Rodriguez did not know whether the anonymous caller was a passerby who purportedly observed the alleged "tagging"; neither did the information that was dispatched to the responding officers indicate the phone number of the reporting party. Thus, unlike Navarette, there was no evidence that the police could at any point verify any information about the anonymous caller in order to safeguard against false reports. Further, unlike both Navarette and Wells, there was no information elicited at the hearing to support a reasonable inference of any ongoing criminal activity.
In sum, under the totality of circumstances, we find that the evidence presented at the suppression hearing was insufficient to justify Gilbert's detention.
III
DISPOSITION
The jurisdictional and dispositional orders are reversed. On remand, the juvenile court is directed to reverse its order denying Gilbert's motion to suppress evidence, enter a new order granting the motion, vacate Gilbert's admissions, and dismiss the juvenile petition at issue in this case.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.