Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C152119
Haerle, J.
I. INTRODUCTION
After a court trial, appellant was found guilty of one count of second degree burglary (Pen. Code, § 459) and one count of evading an officer with willful disregard for the safety of others. (Veh. Code, § 2800.2, subd. (a).) After finding several alleged prior felony convictions to be true, the court sentenced appellant to an aggregate term of four years and eight months in prison.
The only issue on appeal is appellant’s contention that the trial court erred by denying his pre-trial section 1538.5 motion. (Pen. Code, § 1538.5.) In that motion, appellant contended that his initial detention by the Emeryville Police was unlawful and, additionally, that the detention was unlawfully prolonged until he was affirmatively identified by a witness to the burglary. We agree with the trial court that there was neither an unlawful detention nor an improper prolonging of the detention, and hence agree with its denial of appellant’s motion to suppress.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out a burglary of a vending machine supply truck in the parking lot of a Circuit City store, followed by a high speed car chase, and the eventual investigatory detention of appellant as he walked down the street in Emeryville away from the jeep involved in the break-in.
On February 15, 2006, at about 11 a.m., a driver for J & J Vending Company parked his truck in front of a Circuit City store in Emeryville, locked it, and took two money bags into the break room of the store, so he could tend to the vending machines there. While the driver was inside, Circuit City sales manager Robert Vaclav received a page from a loss prevention specialist that someone was trying to break into a truck in front of the store. Vaclav went outside and saw the J & J van rocking back and forth as if someone was moving inside. An African-American male wearing a beige jacket “like an overcoat” and carrying a black messenger bag came out of the passenger side of the van, ran, and jumped into a late 80’s red Jeep Cherokee with an American flag sticker on the rear window and no license plates. The jeep sped away. Vaclav called 911 and reported the incident. The J & J driver noticed that the padlock to the safe in the back of the truck was broken and ten money bags containing an estimated $1,000 to $2,000 were missing.
Meanwhile, the jeep led police on a high-speed chase on and off the freeway, through the side streets of Emeryville, occasionally driving over sidewalks and running stop signs in an apparent effort to elude the officers. The jeep continued speeding over some large speed bumps, almost getting airborne. At that point, the officers called off the chase because they feared damaging their cars and the jeep was getting away.
Sgt. Frank Sierras, who was monitoring the chase by radio from the police station, also called off the pursuit because it posed a risk to public safety in the highly populated area. At the suppression hearing, Sierras, who had worked for the department for 32 years, testified that the broadcast described the fleeing vehicle as a red Jeep Cherokee with no rear license plate driven by a Black male. Two to five minutes after the pursuit was terminated, another Emeryville police officer found a jeep matching that description on an Emeryville side street. Sierras, who was nearby, began driving to the location of the jeep. Meanwhile, a citizen flagged down an officer who was near the abandoned jeep, saying he had seen an African-American man exit the jeep and run. The citizen said the man was carrying a bag and black jacket, wearing a rust sweater, and running westbound. Sierras then drove in that direction and, seven or eight minutes later, saw appellant walking on the street about three blocks away from the abandoned jeep. Sierras watched appellant from his parked patrol car. Appellant, the only person on the street at the time, “was looking back as if somebody was following him.” Sierras decided to stop appellant because he was the only person on the street at the time, matched the racial description of the suspect, was looking over his shoulder as if someone was following him, and was carrying a bag while walking away from the location of the recently-abandoned jeep.
The facts regarding the burglary and car chase are taken from the trial transcript while the facts that follow come from Sierras’ testimony at the May 10, 2006, suppression hearing.
Sierras turned on his patrol car’s emergency lights and stopped appellant, who was wearing a multi-colored striped shirt. When Sierras told appellant he was investigating a burglary, appellant threw up his hands in a surrender position and said, “I didn’t do anything. I’m not the guy.” This reaction surprised Sierras because in his experience people encountering an officer usually ask how they can help instead of assuming the surrender position. When Sierras asked appellant if he was on parole or probation, he would not answer any more questions. Additionally, when Sierras asked him for identification, appellant also produced a driver’s license that belonged to someone else. Sierras noticed that appellant was looking up and down the street as if he was going to run. Although appellant was not out of breath, Sierras observed a light sweat on his forehead.
Sierras detained appellant for about 20 minutes as other officers brought some witnesses to the scene. The first witness—the citizen who claimed to see a man exiting and running from the jeep—could not identify appellant as that person. Another witness, Vaclav, the Circuit City sales manager who had called in the burglary to 911, was also brought to the scene. Vaclav identified appellant as the burglar. Vaclav then was taken to the abandoned jeep, which he also identified as the red Jeep Cherokee the burglar had driven from the break-in.
An information filed on March 23, 2006, charged appellant with second degree vehicle burglary and evading a police officer with willful disregard for the safety of others. Before trial, appellant moved to suppress the in-field show ups, any police observations, and any statements made by police under Penal Code section 1538.5, contending his detention by Sierras was unreasonable. At the suppression motion hearing, the prosecution presented testimony from Sierras plus portions of the 911 tape containing Vaclav’s report of the burglary.
The court heard and denied the suppression motion on May 10, 2006, holding that the stop was reasonable. In short, the court found that Sierras had a reasonable suspicion to detain appellant because he was close to the abandoned jeep, he matched the description of the burglar, he was looking over his shoulder as he walked, and he was the only person on the street. The court also ruled that the stop was not unduly prolonged, based on factors including appellant’s assuming the surrender position and presenting a false identification.
On May 17, appellant was convicted of one count of second degree burglary and one count of evading an officer with willful disregard for the safety of others. The court also found that appellant had one prison prior. The court sentenced appellant to an aggregate prison term of four years and eight months. This timely appeal followed.
III. DISCUSSION
A. Standard of Review
In evaluating a challenge to a trial court’s ruling on a motion to suppress evidence, we use a two-pronged standard of review. First, we defer to the trial court court’s express or implied factual findings if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Second, “we exercise our independent judgment” to determine whether, on these facts, the challenged seizure violated the Fourth Amendment. (Ibid.) There are no factual disputes regarding appellant’s motion to suppress; thus, we turn to the reasonableness of the detention as a matter of law.
B. The initial detention
Appellant contends the initial investigative detention soon after the burglary was an unlawful seizure under the Fourth Amendment because it was based on a vague description and because Sierras did not have a reasonable suspicion that appellant had been involved in the incident. We disagree.
The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures” by the government. (U.S., Const. 4th Amend.; see also Terry v. Ohio (1968) 392 U.S. 1, 21). However, this prohibition does not require probable cause to justify a detention but merely a reasonable suspicion that criminal activity is afoot. (People v. Souza (1994) 9 Cal.4th 224, 230-231 (Souza).) Furthermore, the reasonable suspicion necessary to justify an investigative stop is “ ‘obviously less demanding than that for probable cause’ and can be established by ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” (Id. at p. 230, quoting United States v. Sokolow (1989) 490 U.S. 1, 7.)
Put another way, “the circumstances known or apparent to the officer must include specific and articulable facts, which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.” (People v. Conway (1994) 25 Cal.App.4th 385, 388 (Conway), citing In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.), superseded by constitutional amendment on another point as stated in In re Christopher B. (1990) 19 Cal.App.3d 455, 460, fn. 2; People v. Lloyd (1992) 4 Cal.App.4th 724, 733 (Lloyd).) In short, “the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience to suspect that criminal activity has occurred . . . and that the person to be stopped or detained is involved . . . .” (Id. at p. 389.) Thus, as we have noted, if the officer possesses this objectively reasonable suspicion regarding defendant, the motion to suppress evidence under section 1538.5 is properly denied. (People v. McDonald (2006) 137 Cal.App.4th 521, 530.)
Prince argues that Officer Sierras’s investigative stop was unreasonable because it was based on a vague description of the burglar’s race and clothing along with other factors that could have had an innocent explanation. In so doing, appellant claims this case is analogous to Tony C., supra, 21 Cal.3d 888, a case in which our Supreme Court held a detention was not justified because the stop was illegally—and solely—based on race. (Id. at p. 898.) In Tony C., an officer, knowing there had been several burglaries in the area by three African-American males, stopped two African-American teens walking in a residential area at about noon. (Id. at p. 897.) The court held the detention unlawful because the descriptions of the suspects were too vague to cast suspicion on these particular boys and because there was nothing inherently nefarious about school-age minors walking in a residential neighborhood at noon. (Ibid.)
In contrast here, Sierras possessed additional specific and articulable facts justifying the detention of appellant. Unlike the minors in Tony C., appellant did not appear to be just strolling down the street. In addition to matching the description of the burglar, appellant was looking over his shoulder as if someone was following him, and he was moving away from a recently abandoned vehicle involved in a burglary.
This case instead is analogous to a series of cases where courts have upheld detentions as reasonable based partly on the fact that the suspect was the only person in the area shortly after a crime had occurred. (See, e.g., Conway, supra, 25 Cal.App.4th at p. 390; Lloyd, supra, 4 Cal.App.4th at pp. 733-734; People v. Anthony (1970) 7 Cal.App.3d 751, 761 (Anthony).) In Conway, for example, an officer reasonably stopped the only car in the area after hearing a police report of a burglary in progress. (Conway, supra, 25 Cal.App.4th 385.) Similarly in Anthony, an officer reasonably detained a vehicle traveling away from the scene of the crime partly because it was the only one on the streets at the time. (Anthony, supra, 7 Cal.App.3d 751.) In so doing, the court held that the detention was “necessary to the proper discharge of [the officers’] duties” in connection with the robbery. (Id. at p. 761.)
Appellant’s argument that the incidents involved in Conway and Lloyd are distinguishable because they took place in the middle of the night is unpersuasive. As in those cases, appellant was the only person on the street in the vicinity of the crime. Moreover, Conway and Lloyd are also similar to this case because they both rely on the crucial factor that the stop followed the report of a suspect fleeing the commission of a crime.
Here, as in those cases, appellant was the only person on the street in the vicinity of the jeep. Thus, Sierras’s suspicion was reasonably aroused by appellant’s proximity to the abandoned jeep—with its distinctive American flag and lack of a license plate—along with the fact that he was looking over his shoulder and matched the race and gender description of the burglary suspect.
Appellant also contends the stop was not reasonable because appellant was wearing a multi-colored striped shirt—not the beige sweater cited by a witness. However, witnesses and “(c)rime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties.” (People v. Smith (1970) 4 Cal.App.3d 41, 48-49.) The discrepancies in the descriptions of sweaters and bags notwithstanding, as noted above there was enough other information available to Sierras to establish the requisite reasonable suspicion to detain Prince.
Appellant also contends Sierras improperly relied on factors that could have had an innocent explanation—namely, that appellant was the only person walking down the street and that he was looking over his shoulder. However, the mere fact that an innocent explanation is available does not preclude an officer’s reasonable suspicion. (Tony C., supra, 21 Cal.3d at p. 894.) That is, activities that seem innocuous can indicate possible criminal activity to an officer with special training and experience. (People v. Carvajal (1988) 202 Cal.App.3d 487, 495-496.)
In short, an officer’s reasonable suspicion is based on the totality of the circumstances. (Souza, supra, 9 Cal.4th at p. 231.) And while shifty or furtive movements or gestures alone are not enough to justify a stop, they may take on new meaning when coupled with other factors. (Id. at p. 239; People v. Flores (1972) 23 Cal.App.3d 23, 27-28 (Flores).)
In Souza, for example, our Supreme Court said that flight alone would not justify an investigative detention, but flight coupled with other factors such as the time of day and location could. (Souza, supra, 9 Cal.4th 224.) Similarly, in Flores, the court held that the stop of a driver was justified because, among other things, she drove past two empty parking spaces and leaned to the right inside her vehicle as if she was secreting something on that side of the car. (Flores, supra, 23 Cal.App.3d at pp. 27-28.) In other words, an officer can consider the total manner in which a person acts as he or she moves through the streets—even if each action alone could have an innocent explanation.
Here, taken in isolation, the mere fact that appellant was looking over his shoulder or walking on the street would not be enough to justify his detention. However, Sierras, with his 32 years of experience and looking at the total circumstances, could have reasonably suspected that appellant was fleeing from the jeep involved in the Circuit City parking lot burglary.
C. Scope of the detention
Prince also contends the scope of the investigatory detention was unreasonable because Sierras relied on factors he could have learned of only after the original stop. An investigatory stop must be justified at its inception and becomes unconstitutional when it exceeds the scope of what is reasonably necessary under the circumstance. (People v. Russell (2000) 81 Cal.App.4th 96 (Russell).) However, it is well-settled that circumstances developing “during detention may provide reasonable suspicion to prolong detention.” (Id. at p. 102.) In other words, “the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (Ibid.)
In Russell, for example, a police officer initially stopped a car for driving erratically. (Russell, supra, 81 Cal.App.4th at pp. 99-100.) During the course of the stop, circumstances arose that prompted the officer’s reasonable suspicion to prolong the stop. (Ibid.) These included a “masking” odor coming from the car, worn screws on the dashboard and upholstery that indicated the car had been disassembled, and the defendant’s red, watery eyes. (Ibid.) The court held that the officer’s continuation of the stop was justified because, in his 15 years of experience on the force, these factors indicated drug activity. (Ibid.)
Here, the record also shows the requisite diligence and reasonable suspicion to justify appellant’s detention. After Sierras approached him, appellant threw his hands up in a surrender position and looked up and down the street as if he was going to run. Moreover, appellant had sweat on his brow, refused to answer questions about his parole, and proffered a driver’s license that was not his when asked for identification. These circumstances reasonably heightened Sierras’s suspicions that appellant was engaged in criminal activity. Thus, we find that appellant’s detention was not unreasonably prolonged. Sierras had more than ample evidence to initially stop appellant and then to continue detaining him until witnesses arrived at the scene.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J., Richman, J.