Opinion
B229495
10-05-2011
In re JAVIER F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAVIER F., Defendant and Appellant.
Richard L. Fitzer, on appointment by the Court of Appeal, for Defendant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Irvi, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. FJ47901)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robin Miller Sloan, Judge. Reversed.
Richard L. Fitzer, on appointment by the Court of Appeal, for Defendant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Idan Irvi, Deputy Attorneys General, for Respondent.
Following the denial of a motion to suppress evidence, Javier F. admitted to possession of a firearm by a minor in violation of Penal Code section 12031, subdivision (a)(1). The juvenile court adjudicated him a ward of the court pursuant to Welfare and Institutions Code section 602 and placed him home on probation. On appeal, Javier F. contends the police lacked the reasonable suspicion necessary to detain him. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts Preceding Javier F.'s Detention and Arrest
Los Angeles Police Department officers Juan Corona and Oscar Martin received a radio call on September 5, 2010 at 10:00 p.m. regarding vandalism at an apartment building. An anonymous caller had told police that five or six gang members were tagging the building. The caller described the individuals as male Hispanics wearing baggy clothes, specifically white shirts and dark pants.
Both officers responded to the call. Corona recognized the neighborhood as a gang stronghold and thus believed the tip to be credible. When they arrived approximately five to ten minutes later, they saw Javier F. standing alone in front of the apartment building. He appeared to be around 15 years old and was wearing a long black shirt and baggy blue pants. The officers did not see any evidence of spray paint.
Wanting to investigate the vandalism call, Corona told Javier F. to stop so that they could speak with him. Javier F. saw the officers but walked away with his hands in his pockets. He was walking towards his home located on the same street. The officers twice more commanded Javier F. to stop and remove his hands from his pockets, but he did not comply until after the final request. Martin then conducted a pat-down search of Javier F. for officer safety and discovered a loaded handgun in Javier F.'s front pant pocket.
2. Proceedings in the Juvenile Court
On September 8, 2010, the District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging that Javier F. committed two offenses: (1) possession of a firearm by a minor in violation of Penal Code section 12101, subdivision (a)(1); and (2) carrying a loaded firearm as a member of a street gang in violation of Penal Code section 12031, subdivision (a)(1). The juvenile court later dismissed count 2.
Javier F. moved to suppress the weapon on the grounds that the officers discovered the gun following a warrantless detention. After a hearing on the matter, the juvenile court denied Javier F.'s motion, concluding the detention and pat-down were constitutional. The court reasoned that the officers could have constitutionally detained Javier F. based on the general description given in the radio call as well as their general knowledge of the area. Javier F. then waived his rights and admitted count 1 of the petition. The juvenile court ordered Javier F. placed home on probation and noted the maximum term of confinement to be three years. Javier F. now appeals.
DISCUSSION
I. Standard of Review
In reviewing the ruling on a motion to suppress, whether arising from a juvenile court or adult criminal proceeding (see In re William V. (2003) 111 Cal.App.4th 1464, 1468), the appellate court defers to the trial court's express or implied factual findings when supported by substantial evidence. (People v. Ayala (2000) 23 Cal.4th 225, 255.) However, the appellate court independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Whether relevant evidence obtained by unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562.)
II. The Trial Court Improperly Denied Javier F.'s Motion to Suppress
A. The requirement of reasonable suspicion for a detention
In certain circumstances, a police officer may stop and briefly detain a person for questioning or for a limited investigation. (People v. Celis (2004) 33 Cal.4th 667, 673-674.) A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual's liberty. (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
Javier F.'s detention and the subsequent seizure of his weapon were valid only if Corona had a reasonable, articulable suspicion that Javier F. had been or was about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Wells (2006) 38 Cal.4th 1078, 1083.) "The officer's subjective suspicion must be objectively reasonable, and '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. [Citation.]' [Citation.]" (People v. Wells, supra, at p. 1083.) In evaluating whether the standard of objective reasonableness has been satisfied, we must examine the "totality of the circumstances" in each case to determine whether a "particularized and objective basis" supports the detention. (United States v. Cortez (1981) 449 U.S. 411, 417.) "[A]n assessment of the whole picture must yield a particularized suspicion . . . that the particular individual being stopped is engaged in wrongdoing." (Id. at p. 418.) "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273.)
B. Corona's detention of Javier F. was not objectively reasonable
Corona described three categories of information leading to Javier F.'s detention. First, he received the radio call reporting the anonymous tip. The call indicated that five or six Hispanics, wearing white shirts and black pants, were tagging the apartment building in front of which Javier F. was standing when he arrived. Second, Corona knew the area to be a gang stronghold, so he believed the tip to be credible. And finally, Javier F. walked away upon spotting the officers and initially ignored commands to stop and remove his hands from his pockets. We discuss each factor independently to assess whether, when considered as a whole, the facts establish an objectively reasonable suspicion to detain Javier F.
Because the officers made clear that they stopped Javier F. to investigate the vandalism call and not to investigate the 10:00 p.m. curfew violation, we do not address whether the violation could have properly factored into the officers' decision to detain Javier F.
1. The anonymous 911 call
An anonymous tip can support a lawful detention where the information provided is "sufficiently corroborated to furnish [the requisite] reasonable suspicion that [the subject] was engaged in criminal activity. . . ." (Alabama v. White (1990) 496 U.S. 325, 331.) "The purpose of requiring corroboration of an anonymous tip is to ensure that there are probative indications of criminal activity along the lines suggested by the informant." (People v. Ramirez (1996) 41 Cal.App.4th 1608, 1616 (Ramirez).) The Supreme Court discussed the importance of corroboration in Florida v. J.L. (2000) 529 U.S. 266, reasoning, "[u]nlike 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 informant's basis of knowledge or veracity,' [citation]." (Id. at p. 270.)
Moreover, the United States Supreme Court requires more than just corroboration of the physical characteristics of the tip to support a temporary detention, stating, "a tip [must] be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Florida v. J.L., supra, 529 U.S. at p. 272.) For example, this rule was applied in People v. Jordan (2004) 121 Cal.App.4th 544. There, officers corroborated the identity of the subject of an anonymous tip concerning a concealed handgun, but the officers merely observed the suspect sitting on a bench without engaging in any suspicious behavior. (Id. at pp. 548-550.) In holding the detention invalid, the court reasoned that "[t]he information about the appearance and location of appellant, without more . . . does not adequately establish that the tip was reliable in its assertion of illegality." (Id. at p. 558.)
Here, the prosecution falls short both in corroborating the identity of the suspects described in the anonymous tip and in corroborating the illegal activity described. Javier F. did not match the description given. While the report specified five to six individuals, the officers found Javier F. standing alone in front of the apartment building. Javier F.'s clothes, consisting of a black shirt and blue pants, did not match the physical description of the suspects' clothes given by the tipster, who described a group wearing white shirts and black pants. Furthermore, similar to the suspect in Jordan, the officers here found Javier F. standing alone without any signs of having engaged in criminal activity. The officers did not see any fresh spray paint to indicate that tagging had even occurred. This case proves even more compelling than Jordan because the officers there at least found a suspect matching the physical description given in the tip. Without matching any of the details including the number of individuals, the clothing described or the criminal activity alleged, the officers here had no basis for suspecting Javier F. based on the anonymous call.
The People rely on Ramirez to argue the tip was sufficiently corroborated to support the detention. In Ramirez, police officers responded to an anonymous tip that three Hispanic men were dealing narcotics out of their vehicle. (Ramirez, supra, 41 Cal.App.4th at pp. 1611-1612.) The tip specified the location, description, and license plate of the vehicle, and the responding officers found three men in a car that precisely matched the information received from the informant. (Ibid.) In deciding the temporary detention was supported by a reasonable suspicion in that case, the court focused on the fact that the officers had corroborated every physical detail given in the tip. (Id. at p. 1619.) That is not the case here; Ramirez does not support this detention.
2. High Crime Area
The People also contend that the time of day and high-crime nature of the area cast a reasonable suspicion on Javier F. Corona testified that he believed the tip to be credible based on his knowledge of the area. While "[a]n area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment," "mere presence in a high crime area is not, standing alone, 'sufficient to justify interference with an otherwise innocent-appearing citizen. . . .' [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 240-241 (Souza).)
The officers here found Javier F. standing in front of an apartment building without any indications that he was involved in criminal activity. He lived on the block where he was found, and the law is clear that merely being in a known gang or high crime area does not give rise to a reasonable suspicion justifying a warrantless detention. (Illinois v. Wardlow (2000) 528 U.S. 119, 124 ["An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime"]; People v. Medina (2003) 110 Cal.App.4th 171, 178 ["Because the decision to restrain [the defendant's] hands and to search him was based solely on his presence in a high crime area late at night, both the detention and search were unlawful"].) Thus, we afford this factor minimal importance in determining whether the officers had reasonable suspicion to detain Javier F.
3. Walking Away and Ignoring Police Orders
The officers also stated that based on their training and experience, they believed Javier F. could have posed a threat to officer safety because he walked away with his hands in his pockets. Courts have declined to establish a bright-line rule to assess avoiding a police officer as related to a temporary detention. (Souza, supra, 9 Cal.4th at pp. 235-239.) However, the California Supreme Court has explained, "[t]here is an appreciable difference between declining to answer a police officer's questions during a street encounter and fleeing at the first sight of a uniformed police officer. Because the latter shows not only unwillingness to partake in questioning but also unwillingness to be observed and possibly identified, it is a much stronger indicator of consciousness of guilt." (Id. at pp. 234-235.) Thus, "the manner in which a person avoids police contact" may rightly be considered in assessing a reasonable cause for a detention. (Id. at p. 234.) Courts have reasoned that "[h]eadlong flight - wherever it occurs - is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Illinois v. Wardlow, supra, 528 U.S. at p. 124.) But mere avoidance may not suffice as supporting reasonable suspicion. (See People v. Perrusquia (2007) 150 Cal.App.4th 228, 234 [although the defendant attempted to avoid police, no reasonable suspicion existed because "[t]here were no immediately highly suspicious facts such as the flight of a defendant's . . . companions"].)
In People v. Bower (1979) 24 Cal.3d 638, 647-649, decided prior to Proposition 8, the California Supreme Court found the fact that a person was proceeding away from officers at a "'very quick walk, almost a run'" was objectively insufficient to support a temporary detention. The court reasoned that "an individual . . . is as free to avoid the officer as to avoid any other person." (Id. at p. 648.) Similarly, here Javier F. merely avoided police contact. Unlike the suspect in Souza, he did not bolt at the sight of the officers. Instead, he merely put his hands in his pockets and began walking towards home. While he initially did not comply with orders to stop, he did quickly thereafter comply with the officers' commands. His attempts to avoid contact with the officers by merely walking away, without more, is not sufficient to warrant a detention.
4. The facts considered together do not warrant a detention
When weighing the totality of the circumstances in this case, the facts do not warrant a temporary detention. The officers could not corroborate any of the details from the anonymous tip including the description of the suspect, the number of individuals at the scene, or the criminal activity alleged. In the absence of any match with the tip, the officers could only have detained Javier F. for being in a bad neighborhood and doing nothing more than trying to avoid police contact. These factors do not suffice to support a temporary detention.
Our conclusion that the evidence should have been suppressed makes it unnecessary to address Javier F.'s other claim that the court erred in setting a maximum term of confinement. Should the judgment be reinstated on remand, however, no maximum term should be set on a home-of-parent disposition. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
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DISPOSITION
The order adjudicating Javier F. is reversed. On remand the juvenile court is directed to vacate its order denying Javier F.'s motion to suppress evidence and to enter a new order granting the motion. The juvenile court is further directed to permit Javier F. to withdraw his plea of no contest within 30 days after issuance of this remittitur. If Javier F. does not move to withdraw his plea within that time, the order adjudicating him a ward shall be reinstated, but the terms shall be modified as set forth in this opinion.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.