Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. GA067836 Leslie E. Brown, Judge.
Steve Cooley, District Attorney, Patrick D. Moran and Phyllis C. Asayama, Deputy District Attorneys, for Plaintiff and Appellant.
Janice Fukai, Alternate Public Defender, Michael Goodman and Irene Coyle, Deputy Alternate Publice Defenders, for Defendant and Respondent.
DOI TODD, J.
The People of the State of California (the People) appeal from the order dismissing the prosecution of respondent Michael Jordan (respondent) pursuant to Penal Code section 1385, which was entered after an order granting respondent’s motion to suppress evidence made at a special hearing pursuant to Penal Code section 1538.5. (Pen. Code, § 1238, subd. (a)(7).)
All further statutory references are to the Penal Code unless otherwise indicated.
The People contend that “[u]nder the totality of circumstances, the officer had a reasonable suspicion to detain . . . defendant.”
We conclude that the contention has merit, and we will reverse the trial court’s order.
FACTS
The information was filed on December 29, 2006. It charged respondent with two counts of forgery, possessing blank checks with the intent to defraud, a violation of section 475, subdivision (b) and resisting arrest in violation of section 148, subdivision (a)(1).
On March 6, 2007, the trial court heard and determined respondent’s section 1538.5 motion to suppress illegally-seized evidence. The parties stipulated that the officer was not acting pursuant to a warrant. Respondent’s written motion asserted that he was challenging the legality of the police conduct on grounds that respondent was the subject of an illegal detention and arrest on November 8, 2006.
I. The Evidence Adduced During the Section 1538.5 Motion
On November 8, 2006, Glendale Police Officer Jason Ross, a five-year veteran police officer, was assigned to a unit that worked exclusively at the Glendale Galleria and the surrounding downtown Glendale retail area. The unit specialized in retail crime and fraud, and he and a partner were on foot patrol at the Glendale Galleria pro actively looking for retail crime and other sorts of crime.
Officer Ross had taken a 40-hour identity theft training course and had attended Southern California mall officers’ association meetings. Most of his training was on the job. Officer Ross was dressed in plainclothes and was working with a uniformed partner, Officer Robert Murray, a 14-year veteran, who was nearby.
Officer Ross saw respondent descending an escalator in the Glendale Galleria. Respondent was wearing a football jersey and baggie jeans and was carrying a Banana Republic shopping bag. Officer Ross’s attention was drawn to respondent because the shopping bag looked as if it had been “crinkled up” and used many times. It was “very battered and worn.”
Officer Ross testified that he had attached significance to the condition of the bag because thieves use shopping bags for props to make it appear that they are a shopper, to conceal stolen merchandise, to return stolen merchandise under the guise of having paid for stolen items, and as a “booster bag” after a paper shopping bag has been lined with aluminum foil, which prevents the electronic detection of stolen merchandise. The officer explained that such bags are often used a number of times by thieves. Consequently, they may be well worn. Also, a paper shopping bag takes on a “heavily wrinkled appearance” and worn look because of the process of attaching of aluminum foil lining to the bag.
Respondent was accompanied by another male. When respondent entered the Galleria’s Banana Republic store, his companion remained outside, “milling about” and looking at passersby. Officer Ross concluded that the companion might be assisting respondent as a lookout. The officer testified that when a thief enters a store to commit a retail crime, especially fraud, an accomplice commonly remains outside the store to watch for the arrival of security or police personnel. Ross noticed that the two males had split up a short distance before respondent entered the Banana Republic store, rather than immediately before respondent entered the store.
Officer Ross observed that the shopping bag was “loaded up” and “stuffed nearly to the brim” with what appeared to be store merchandise. He explained that this also was unusual because typically, retail stores do not fill their store bags so full of store merchandise. Generally, store personnel will use two bags that are each half full, rather than one bag filled to the brim with merchandise. The possession of a stuffed-nearly-to-the-brim shopping bag was another factor that aroused his suspicion.
Officer Ross followed respondent into the Banana Republic store. He saw respondent go directly to a cashier and begin to converse with her. At the same time, respondent was removing items from the bag. Officer Ross contacted the manager to ascertain whether respondent was attempting to return merchandise. The manager used his wireless headset to speak to the cashier. The cashier told the manager in detail what they were doing and described an “exchange” of store merchandise. The manager related the details of his conversation with the cashier to Officer Ross. This information made him suspicious that respondent was engaged in a “possible fraudulent return” of merchandise.
Officer Ross waited until respondent had completed his transaction and followed him southbound out of the store. The officer also contacted Officer Murray. Officer Murray followed respondent separately, so that respondent would not know that the officers were together. On their cellular telephones, Officer Ross told Officer Murray what he had learned, and they decided that there was a possibility that respondent had engaged in a “fraudulent return.” They decided to stop respondent to speak to him.
As they followed respondent, respondent apparently observed Officer Murray. Respondent looked over his shoulder in Officer Murray’s direction several times. Respondent then stepped into a camera store. Officer Murray walked past the store, looked in and saw respondent speaking on his cellular telephone. As soon as Officer Murray walked by, respondent came out of the store and walked back in the direction from which he came and away from Officer Murray.
At this point, respondent was walking toward Officer Ross. Officer Ross contacted respondent, lifted his shirt to display his badge, identified himself as a Glendale police officer, and asked to speak with respondent. Officer Ross described respondent’s reaction: “[Respondent’s] eyes got real big. He kind of bounced up on the balls of his feet, if you will, as if preparing to run. He spun around without saying anything . . . and took a couple of steps . . . away from me.” At that point, respondent came face-to-face with Officer Murray at 15 feet away. Respondent was standing between the officers, at about 15 feet from each officer.
Suddenly, respondent grabbed the edge of a planter and hurled himself over the planter onto a handicapped ramp running parallel to the location where he had been standing. Simultaneously, respondent blurted out, “I ain’t going back to jail.” Respondent ran northbound past Officer Ross down the mall, and the officers pursued him. During the pursuit, Officer Ross yelled out the following orders: “Stop,” and “Glendale Police Department. Stop running.” Respondent did not comply.
At the Macy’s end of the mall, respondent ran through the parking structure, across a street through traffic, and ducked behind a utility box, reaching into his pants. Officer Ross stopped his pursuit because he was unarmed and concerned that respondent was reaching for a weapon. The officer radioed for assistance. When assistance arrived, respondent ran into the bushes. There, respondent discarded various items that he had on his person and ran again. Respondent was tackled by a uniformed officer and detained.
After respondent was in custody, respondent’s cellular telephone started ringing repeatedly. The officers did not see respondent’s companion after respondent entered the Banana Republic store. Assuming that the telephone calls were from the accomplice, Officer Ross answered the cellular telephone. The officer said to the caller, “Where you at?” and the person replied, “I’m by the car.”
Respondent was arrested for a violation of section 148, subdivision (a)(1), resisting, delaying, or obstructing an officer in the performance of his duties, as well as for “suspicion of 459 P.C. burglary.” Respondent was handcuffed and placed in a patrol vehicle. Before being placed into the police vehicle, on respondent’s person, the officers found a set of car keys that apparently belonged to a rental car. The key chain contained written information identifying the car.
The officer said that inside the store, he was told by the manager that the merchandise was being returned accompanied by a receipt. The merchandise had been purchased five days earlier, which would have meant it was purchased over the weekend. The purchase was made at a different Banana Republic store by personal check. Officer Ross testified to one common method thieves use to commit retail fraud. He described how a thief will make a purchase from a retail store using a personal check written on a closed account or an account with insufficient funds. Or the thief will pay with a stolen check or a check printed up by computer with fraudulent account information. Then, within days of the purchase, the thief will exchange the merchandise for a cash refund at another store at a point in time before the store or retail chain has time to become aware that the check will not clear. He explained that when a purchase is made on the weekend, it can take up to seven days for a retail business to determine whether the check will clear. When a purchase is made on a weekday, the information lag is substantially less. Thus, information that the original purchase took place on the weekend by personal check heightened the officer’s suspicions of a fraudulent return.
During cross-examination, Officer Ross testified that prior to contacting respondent, he had only the information from the manager that he had obtained while inside the store. He saw the receipt only “later.” Officer Ross acknowledged that not all the items listed on the sales receipt had been returned. Further, at arrest, the officer did not know conclusively whether the transaction that he had observed was fraudulent or whether the returned merchandise had been stolen.
Officer Murray also testified. He said that after respondent’s arrest, the officers located respondent’s car. During an inventory search, they recovered a blank Washington Mutual Bank check, which was underneath the car’s driver’s seat. A clear, plastic baggie of marijuana was found in the console. In the rear seat was a rental contract for the car, a GAP store receipt, and a rental contract for a public storage unit. In the trunk were several new items of Banana Republic merchandise. The prosecutor had Officer Murray identify the check found under the driver’s seat, which turned out to be two Washington Mutual checks, numbered 94 and 97.
II. The Trial Court’s Ruling on the Motion
The prosecutor argued that there was reasonable cause to stop appellant to speak to him. Respondent had been carrying not simply a used store shopping bag, but a “crinkled” shopping bag. Also, the bag was filled to the brim with merchandise. The officer had described the significance of a bag in that condition based upon his expertise and experience with retail fraud and theft. Respondent went into the Banana Republic store in the mall and conducted “an exchange.” At contact, respondent acted furtively, refusing to have contact and yelling out, “I’m not going back to jail.” Respondent then ran out of the mall evading all contact with the officers. After the arrest, which the prosecutor urged was supported by probable cause, during an inventory search, the police recovered the Washington Mutual Bank checks from respondent’s car.
Trial counsel argued that all that Officer Ross articulated was “a lot of hunches.” Officer Ross had set out the reasons why he believed fraudulent activity was occurring, but the officer had no knowledge that the transaction was in fact fraudulent, and it was not. Trial counsel urged that the detention was for an impermissible reason: because respondent is an African-American. When the officer attempted to stop respondent, the officer did not have reasonable cause. Thus, respondent had no duty to stay there and speak to the officer. Respondent took off and eventually was arrested for resisting, delaying, or obstructing an officer in the performance of his duties. Additionally, the officers had no probable cause to arrest respondent or search respondent or to use his cellular telephone. The inventory search was based upon an unlawful arrest.
The prosecutor responded that regardless of the legality of the attempted detention, respondent’s conduct subsequent to the contact was furtive, confirming the officer’s belief that respondent was engaged in wrongdoing and adding to the officer’s legitimate suspicions about respondent.
The trial court commented, “Wait a minute. Let me see if I follow. You’ve got a guy who goes into a store, returns some merchandise. He fits a profile of somebody who is returning something fraudulently, which is a profile that this court was not aware of, but now I do know that exists. So therefore he is automatically reasonably suspected of having done something. He’s therefore required to stop and talk to police officers, because a police officer asked him to stop. Is that what you are saying?”
The prosecutor said it was not a matter of “fitting the profile,” rather the condition of the bag was suspicious.
The trial court inquired, “So if I have a bag from Banana Republic and I have crinkle[d] it, and then take clothing back that I legitimately purchased, then I’m reasonably suspected of possibly having committed fraud in returning that merchandise?”
The prosecutor protested that it was a combination of factors that led the officer to determine that he had reasonable cause. The officer was relying on factors that took on significance because the officer had special training. The prosecutor argued that when you added up the “totality of the circumstances” in light of the officer’s experience, as well as the furtive conduct, there was reasonable cause to detain respondent.
The trial court ruled as follows: “I have a difficult time with this. I don’t believe the officer had reasonable suspicion at that time. I believe based on [the officer’s] testimony, he believes he’s developed some form of profile that this particular person met. I don’t think at the time that he made the attempt to stop the defendant that he had sufficient cause to stop him. I don’t think the defendant was under any obligation to stop at that time. And I’m going to grant the motion.” The trial court ordered all the observations made by the officers subsequent to the attempted detention suppressed, as well as all the evidence obtained thereafter.
The People were then unable to proceed. Trial counsel interjected that the dismissal would be “with prejudice” as this was “a refiling.”
The trial court ordered a dismissal pursuant to section 1385.
DISCUSSION
The People contend that the trial court’s ruling lacks support in the record. They urge that the trial court erred by finding an illegal detention and by suppressing all the evidence secured as a fruit of the purportedly illegal detention.
We agree that the trial court erred when it ruled that the detention was illegal.
In People v. Souza (1994) 9 Cal.4th 224 (Souza), the court set out the general principles that apply: “Probable cause to arrest exists when the facts and circumstances known to the arresting officer ‘“‘warrant a [person] of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested].”’ [Citations.] By contrast, the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]” (Souza, supra, at p. 230.)
A detention is lawful “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.” (Souza, supra, 9 Cal.4th at p. 231.) “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity. [Citation.]” (Illinois v. Wardlow (2000) 528 U.S. 119, 123–124 (Wardlow).)
The People make three arguments: (1) the trial court failed to consider the officer’s expertise as a factor in determining reasonable cause; (2) the officer’s efforts to contact defendant amounted to a consensual encounter within the meaning of Florida v. Bostick (1991) 501 U.S. 429, 434; and (3) the officer had probable cause to detain and to arrest respondent because respondent resisted, delayed, and obstructed the officer when he failed to stop when the officer shouted at him to stop during the pursuit through the mall.
We are not concerned with the People’s initial two arguments. At the outset, in the trial court, they never asked the trial court to consider whether the initial contact was a consensual encounter. (See, e.g., People v. Fauber (1992) 2 Cal.4th 792, 854–855.) Also, these claims are irrelevant in light of the United States Supreme Court’s decisions in California v. Hodari D. (1991) 499 U.S. 621, 626 (Hodari D.) and Wardlow, supra, 528 U.S. 119.
In Hodari D., police officers were walking toward a group of juveniles that included Hodari D. When the juveniles saw the officers, they began to run. One officer ran after Hodari D. During the pursuit, the officer saw Hodari D. throw away what appeared to be a small rock. Shortly thereafter, the officer tackled Hodari D. and arrested him. The officer retrieved the rock and discovered that it was crack cocaine. The United States Supreme Court held that the officer’s seizure of the crack cocaine was lawful, even though the officer did not have the reasonable suspicion required to stop Hodari D. before he started to run. (Hodari D., supra, 499 U.S. at p. 624, fn.1.) The court explained that even if the pursuit qualified as a “show of authority,” Hodari D. was not seized because he did not submit to the show of authority; Hodari D. was seized only when he was tackled by the officer. At that point, Hodari D. had already abandoned the cocaine. Under the Fourth Amendment, a “seizure” of the person occurs only when police use physical force to restrain a person or, absent that, when a person physically submits to a show of authority by the police. (Hodari D., supra, at p. 626 & fn. 2; accord, County of Sacramento v. Lewis (1998) 523 U.S. 833, 843–844 & fn. 7 [attempted seizures are beyond the scope of the Fourth Amendment].)
We note that in Hodari D., supra, 499 U.S. at page 624, footnote 1, the court observed the following: “California conceded below that Officer Pertoso did not have the ‘reasonable suspicion’ required to justify stopping Hodari [D.], see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968). That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (‘The wicked flee when no man pursueth’). We do not decide that point here, but rely entirely upon the State’s concession.”
In Wardlow, supra, 528 U.S. 119, eight police officers in a four-car caravan converged on a neighborhood where high narcotics trafficking occurred. Upon arrival, two of the officers noticed the defendant standing near a building holding a bag. The defendant looked in the direction of the officers and then fled. (Wardlow, supra, at p. 122.) Before the defendant ran, the officers had no reason to suspect the defendant of any wrongdoing and had no legitimate cause to detain him; the defendant simply fled from the possibility of a consensual encounter with the police. The court commented, as follows: “. . . in Florida v. Royer, 460 U.S. 491. . . (1983), . . . we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual, has a right to ignore the police and go about his business. Id., at 498. And any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ Florida v. Bostick, 501 U.S. 429, 437 . . . (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” (Wardlow, supra, at p. 125.)
The Wardlow court also said, “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion’ and ‘headlong flight . . . is the consummate act of evasion . . . .’” (Wardlow, supra, 428 U.S. at p. 124.)
When Officer Ross initially approached respondent, there was no detention because no seizure implicating the Fourth Amendment occurred when the officer contacted and then pursued respondent. (Hodari D., supra, 499 U.S. at p. 626; see also Souza, supra, 9 Cal.4th at p. 239, fn. 3.) Respondent did not merely refuse to cooperate and go about his business. His response was flight, the consummate act of evasion, and the exclamation, “I ain’t going back to jail.” The content of what respondent said, combined with the headlong flight, and the officer’s barest of suspicion of retail fraud, provided the officers with reasonable cause for the detention outside the mall. (Wardlow, supra, 528 U.S. at pp. 121–122, 125 [officers may detain individuals to resolve ambiguities in observed conduct]; Souza, supra, at pp. 234–242 [discussing the role that furtive conduct or flight during an attempted contact plays in providing an officer with reasonable cause]; see United States v. Bonner (3d Cir. 2004) 363 F.3d 213, 218.)
Also, once Officer Ross saw the flight and heard the content of respondent’s outburst, respondent’s failure to comply with Officer Ross’s lawful shouts to stop and submit to a detention also constituted resisting, delaying, and obstructing a peace officer in the course of his duties. Accordingly, once respondent was detained by the other officer, Officer Ross had probable cause to arrest respondent for the misdemeanor offense of resisting, delaying, or obstructing an officer. (See People v. Jenkins (2000) 22 Cal.4th 900, 1020; In re Manuel G. (1997) 16 Cal.4th 805, 815; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [a defendant cannot be convicted of an offense against a peace officer “‘engaged in . . . the performance of . . . duties’” unless the officer was acting lawfully at the time].)
We conclude that the officer’s suspicions of retail fraud—which were not overwhelming—plus respondent’s conduct and outburst upon being contacted by the officer were sufficient to provide reasonable cause for a valid detention. (Souza, supra, 9 Cal.4th at p. 235 [the court must evaluate the totality of circumstances in determining the validity of a detention, and “even though a person’s flight from approaching police officers may stem from an innocent desire to avoid police contact, flight from police is a proper consideration—and indeed can be a key factor—in determining whether in a particular case the police have sufficient cause to detain”]; People v. Britton (2001) 91 Cal.App.4th 1112, 1118–1119 [more than simple unprovoked flight occurred here justifying the detention].)
The record is odd with respect to the officer’s suspicion of retail fraud. It is disturbing that the officer failed to include within his testimony whether the merchant was also concerned that respondent was engaged in retail theft. Also, there is no mention of whether the merchant’s policies precluded a cash return in respondent’s circumstances and whether respondent actually obtained a cash return during the transaction.
Accordingly, we conclude that the trial court erred as a matter of law by ruling that a detention occurred at the point of the initial confrontation and that the officer had no reasonable cause to detain respondent and no probable cause for arrest.
This record contains no evidence of racial profiling that might undermine our conclusion in this instance. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354, fn. 25; Wardlow, supra, 528 U.S. at p. 133 & fn. 9 (dis. opn. of Stevens, J.); People v. McKay (2002) 27 Cal.4th 601, 640–641 & fn. 6 (dis. opn. of Brown, J.).)
DISPOSITION
The order under review is reversed, as is the trial court’s section 1538.5 ruling finding of an illegal detention and the order suppressing the fruits of that detention. The trial court is ordered upon remand to reinstate the information and to permit the People to proceed with the prosecution.
We concur: BOREN, P. J, CHAVEZ, J.