Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 080846-9
BANKE, J.
In three separate cases in 2006, 2007, and 2008, defendant Javante Turner was charged with numerous drug related offenses including possession of cocaine base, possession of heroin, possession of heroin for sale, and possession of controlled substances and of a firearm. The court denied motions to suppress in each case and then consolidated the cases for trial. A jury convicted defendant on all counts, and the court sentenced defendant to a total prison term of three years eight months. Defendant filed a timely notice of appeal.
On appeal, defendant raises no claims of error with respect to the trial or sentence. However, he contends the trial court erred in denying his motions to suppress. We conclude the motions were properly denied and affirm the judgment.
ANALYSIS
Standard of Review
Our standard of review is well established: “Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, ‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.] ‘We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]’ [Citation.]... We affirm the trial court’s ruling if correct under any legal theory.” (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)
The Motion to Suppress in the 2008 Case
In the 2008 case, defendant moved to suppress heroin found in his pockets during a search incident to an arrest for violating Penal Code section 148.
All further statutory references are to the Penal Code unless otherwise indicated.
Evidence Relevant to the Motion to Suppress
On April 27, 2008, at 6:20 p.m., Pinole Police Detective Timothy Cauwels began pursuing the driver of a stolen vehicle. As the driver turned left from San Pablo onto Sunnyview Drive, he looked over his shoulder at Detective Cauwels and rapidly accelerated. When Detective Cauwels activated his overhead lights and siren, the driver moved into the lane for oncoming traffic and drove through a stop sign. As the chase continued, the driver slowed down, jumped out the passenger-side door, and ran toward an apartment complex. The Honda continued to roll forward and crashed into a pole.
Detective Cauwels pursued the driver on foot shouting: “Stop, police.” The driver ran down several flights of stairs to a parking lot, ran up a hill, and jumped over a fence into the backyard of an apartment (apartment 101). Detective Cauwels saw the sliding glass door to the apartment was open, and observed defendant come to the door and look outside. Detective Cauwels did not believe defendant was the driver, but saw a resemblance and thought they might be related. He told defendant to stay inside, and he called for cover.
When cover officers arrived, they checked the yards of two adjacent apartments, but found no one in them and observed the back doors were locked. Detective Cauwels concluded the driver had fled into apartment 101. The officers surrounded the apartment and ordered everyone out with their hands up.
Seventeen-year-old T.W., 12-year-old R.H., 16-year-old A.T., and defendant came out. Detective Cauwels testified he did not believe he had his gun drawn as the four exited, and could not recall whether the other officers drew their weapons. He ordered the exiting individuals to keep their hands in the air so he could see them, and directed them to a corner away from the door, so he and other officers could enter to look for the driver they were pursuing.
As defendant exited he was “very agitated” and cussing. Everyone else complied with the order to keep their hands up, but defendant kept dropping his hands, forcing Detective Cauwels to repeat the order twice. Realizing the driver was not among the four who had exited, Detective Cauwels and Sergeants Avery and Messier entered the apartment to search for him. No more than five minutes had elapsed since Detective Cauwels had seen the driver enter the backyard.
In the meantime, Officer Lindberg had arrived. He stayed outside with the other occupants, including defendant. Officer Lindberg testified his role was to help secure the perimeter and protect the safety of the other officers and residents of the apartment complex until the suspected driver of the stolen vehicle was captured. Officer Lindberg was present as defendant exited the apartment. He heard defendant cursing at the officers, and saw him refusing to keep his hands up. Officer Lindberg noticed that when defendant dropped his hands he kept going underneath his shirt toward his waistband. Defendant’s clothing was loose, and his T-shirt fell to his knees. Officer Lindberg feared he could be concealing a weapon. Although Officer Lindberg did not testify as to when he first drew his weapon, it was clearly drawn while he was trying to get defendant to keep his hands in the air because Officer Lindberg testified defendant demanded that he stop pointing his weapon at defendant. In an effort to gain control, Officer Lindberg ordered defendant to stand in front of a section of fence and asked him to keep his hands on the fence.
Defendant did not initially comply with this order. Officer Lindberg warned defendant if he did not keep his hands up “he could possibly be shot.” Defendant responded: “I wish you would.” Officer Lindberg replied: “Once I squeeze the trigger I can’t pull the bullet back.” Officer Lindberg testified defendant then stated “once all this was done he was going to put a bullet through my eyes.” Officer Lindberg asked if defendant was threatening him, and defendant “indicated it was a promise not a threat.” Defendant stressed that he “doesn’t miss.” Defendant also sarcastically expressed the hope that, when he followed through on this “promise, ” Officer Lindberg would be able to get to his gun before defendant got to his.
A short while later, Detective Cauwels came out with defendant’s brother, the driver of the stolen vehicle. Officer Lindberg asked Detective Cauwels to arrest defendant because defendant had threatened to kill Officer Lindberg. Detective Cauwels handcuffed defendant and searched him. In defendant’s right front pocket he found a baggie containing six smaller baggies individually packed with heroin.
R.H. and A.T. testified for the defense and gave accounts that conflicted with Officer Lindberg’s and Detective Cauwels’ testimony regarding defendant’s noncompliance with commands to keep his hands in the air, and the making of a threat to Officer Lindberg.
The Magistrate’s Ruling
The magistrate found insufficient cause to hold defendant on the resisting or delaying an officer (§ 148) count. He never clearly stated the reasons for this decision, but did state he found pointing the gun at defendant during the detention and warning defendant he could be shot because he was cussing and refusing to keep his hands in view, was “extreme.” The magistrate apparently concluded once Officer Lindberg pointed his gun at defendant he was no longer engaged in the lawful performance of his duty because that act constituted unreasonable or excessive force, or turned the detention into a de facto arrest without probable cause. The magistrate stated he would therefore “discharge” defendant on the section 148 count.
“ ‘Before a person can be convicted of [a violation of section 148, subdivision (a)] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.’ [Citation.]” (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818-819.) Nonviolently resisting an unlawful detention does not violate section 148, and is not a criminal offense. (In re Michael V. (1974) 10 Cal.3d 676, 681; In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1642.)
However, for purposes of resolving the motion to suppress, the magistrate clearly distinguished between defendant’s nonviolent cussing and refusal to keep his hands in the air and defendant’s verbal threat to kill Officer Lindberg. The magistrate reasoned disposition of the motion to suppress turned on the question of whether the police had probable cause to arrest defendant based upon his threat to kill Officer Lindberg since the heroin was found in a search incident to that arrest. For purposes of determining whether the police had probable cause to arrest defendant, the magistrate expressly found the “threat was made, ” i.e., that defendant did say to Officer Lindberg “once all this was done he was going to put a bullet through [Officer Lindberg’s] eyes.” The magistrate further stated even if the evidence did not support the charge of violating section 148, “I think there was a... [section] 69 in there.” The magistrate concluded the threat to Officer Lindberg provided probable cause to arrest defendant for threatening an officer (§ 69), and denied the motion to suppress.
The parties below also engaged in extended argument regarding whether exigent circumstances justified pursuit of the fleeing driver into the apartment, and the legality of ordering defendant and the other occupants out while Detective Cauwels entered the apartment to find and arrest defendant’s brother. In his reply brief, defendant confirms he has abandoned any contention on appeal that entry into the apartment without a warrant, and the detention of the occupants outside while the police entered to search for the arrest and driver, constituted grounds to suppress the evidence found in the search incident to his arrest.
The prosecutor later amended the information to change the second count to a violation of section 69, but on motion of the prosecutor the court eventually dismissed that count.
The Police Had Probable Cause to Arrest and Search Defendant
The magistrate’s factual finding that defendant threatened “once all this was done he was going to put a bullet through [Officer Lindberg’s ] eyes, ” is supported by Officer Lindberg’s testimony, and the magistrate was entitled to credit this testimony. (People v. Hua, supra, 158 Cal.App.4th at p. 1033.) Indeed, defendant does not dispute that he made this threat. Instead, he contends: (1) there was no probable cause to arrest him because the magistrate found insufficient evidence to hold him over for violating section 148; and (2) his threat to kill Officer Lindberg also could not have violated section 69, because the magistrate determined Lindberg was not engaged in the lawful performance of his duty when he pointed his gun at defendant, and the evidence did not support any inference the threat was to deter the future lawful performance of Officer Lindberg’s duties. Defendant concludes the arresting officers lacked probable cause to arrest him for violating section 148 or section 69, and therefore the motion to suppress the heroin found in the search incident to his arrest should have been granted.
Even if we accept arguendo the premise that Officer Lindberg was not engaged in the lawful performance of his duty when he used his gun in an effort to compel defendant to keep his hands visible, defendant’s argument that there was no probable cause to arrest him fails for two reasons:
Since defendant’s argument fails in any respect, for the sake of judicial economy, we will not belabor the lawful performance point. Nonetheless, we feel compelled to note the magistrate’s pronouncement that Officer Lindberg’s use of his gun to compel defendant’s cooperation amounted to an unreasonable use of force or converted the detention into a de facto arrest is questionable at best. Claims of excessive force in the course of an arrest or stop are analyzed under the Fourth Amendment and its reasonableness standard. (See Graham v. O’Connor (1989) 490 U.S. 386, 395-397; Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 164.) “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” (Graham v. O’Connor, at pp. 396-397.) In light of defendant’s belligerent refusal to comply with repeated requests to keep his hands visible, his repeated gestures toward his waistband under clothes that could readily conceal a weapon, and the fact he had exited from an apartment into which the driver of the stolen car had fled, Officer Lindberg’s decision to point his gun at defendant and warn him he could be shot if he did not comply with orders given to ensure the safety of both the officers and other occupants, would appear to be a reasonable use of force commensurate with the danger posed by the circumstances and defendant’s actions. For the same reasons, we also fail to see how Officer Lindberg’s limited use of force before defendant uttered his threat could have converted the detention into a de facto arrest without probable cause. (See People v. Celis (2004) 33 Cal.4th 667, 675 (Celis) [stopping an individual at gunpoint, handcuffing him and making him sit on the ground did not convert a detention into a de facto arrest without probable cause].)
First, the magistrate’s decision not to hold defendant over on the section 148 count does not compel the conclusion there was no probable cause to arrest defendant. The validity of an arrest is measured by whether “the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (Celis, supra, 33 Cal.4th at p. 673.) Accordingly, the probable cause determination is not framed by either the crime the arresting officer thought was being committed, or the criminal charges ultimately filed. (Devenprock v. Alford (2004) 543 U.S. 146, 153-155; People v. McDonald (2006) 137 Cal.App.4th 521, 530.) Instead, the inquiry is whether there was a reasonable basis to believe the defendant engaged in some criminal conduct. (Devenprock v. Alford, at pp. 153-155.) An arrest for the wrong offense does not affect the validity of the arrest if probable cause existed to arrest for another offense. (People v. Lewis (1980) 109 Cal.App.3d 599, 609; see also In re Donald L. (1978) 81 Cal.App.3d 770, 775 -776; see also Johnson v. Lewis (2004) 120 Cal.App.4th 443, 453-454.) Therefore, the probable cause determination does not turn on whether Officer Lindberg correctly concluded defendant’s threat violated section 148, or on whether the facts then known to Officer Lindberg were sufficient to convict him of violating section 148. Instead, the relevant inquiry for the purpose of resolving the motion to suppress is whether there was probable cause to believe he had committed any criminal offense, including a violation of section 69.
Second, it does not necessarily follow from the magistrate’s belief that Officer Lindberg was not engaged in the lawful performance of his duty when he pointed his gun at defendant, that defendant’s subsequent threat to kill Lindberg did not provide probable cause to arrest him for violating section 69. Section 69 can be violated when a threat is made to deter an officer from future performance of his duties, even if the officer is not engaged in lawful performance of duties at the time the threat is made. (In re Manuel G. (1997)16 Cal.4th 805, 817 (Manuel G.).)
In Manuel G., the defendant was convicted of violating section 69 for making a threat to a sheriff’s deputy who approached him on the street and asked if he knew anything about a recent gang-related killing. During the encounter the defendant stated he and his “home boys” were going to “start killing” deputies, if the deputies did not leave them alone. (Manuel G., supra, 16 Cal.4that pp. 819-820.) The Court of Appeal reversed his conviction on the ground the minor was detained without reasonable suspicion when he made the threat. It reasoned the minor therefore could not have violated section 69, because, like section 148, one of the elements of a section 69 violation is that the officer have been engaged in the lawful performance of his or her duties at the time the offense is committed. (Manuel G., at pp. 810, 812-813.)
Our Supreme Court reversed the appellate court. It explained section 69 “sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.” (Manuel G., supra, 16 Cal.4th at p. 814.) This first type of section 69 violation can be established by “[a] threat, unaccompanied by any physical force, ” (Manuel G. at p. 814) and may involve “attempts to deter either an officer’s immediate performance of a duty imposed by law or the officer’s performance of such a duty at some time in the future.” (Id. at p. 817.) If the threat is to deter the officer’s performance of duty at a later time, “only the future performance of such duty must be lawful.” (Ibid., italics added.) “[T]he circumstance that the officer may not have been acting in the lawful performance of his or her duties-or may not have been engaged in his or her official duties at all-at the time the threat is made, would not preclude a finding that the defendant violated section 69.” (Id. at pp. 816-817.) The court explained threats to deter future performance of lawful duty violate section 69 even if the peace officer was not then lawfully performing his or her duty because “peace officers investigating criminal activity, must feel free to pursue their lawful duties without fear of violent retaliation.” (Manuel G., at p. 819.)
The court did, however, note section 69 “does not reach threats made only in response to or in retaliation for an officer’s past performance of his or her duties.” (Manuel G., supra, 16 Cal.4th at p. 817, fn. 6.)
Based upon Manuel G., defendant argues there was no probable cause to arrest him for a section 69 violation because the only inference that could be drawn from the circumstances was that he made the threat merely to deter Officer Lindberg from the immediate unlawful act of pointing the gun at him, not the performance of some future duty. We disagree. Defendant’s threat is subject to more than one reasonable inference regarding his intent and purpose. Defendant’s words explicitly referenced the future performance of Officer Lindberg’s duties by asserting he would shoot Officer Lindberg between the eyes “once all this was done.” (Italics added.) Certainly, a reasonable inference can be drawn that this threat was made to also deter Officer Lindberg from future performance of his lawful duties.
Defendant also confuses the ultimate question of guilt on a charge of violating section 69, with the question of whether the arresting officer had a reasonable basis for concluding defendant had engaged in criminal conduct and therefore had probable cause to arrest him. The issue of whether probable cause to arrest exists is distinct from, and does not depend on, whether the facts are sufficient to convict, or on whether the defendant is ultimately convicted. (People v. Hill (1974) 12 Cal.3d 731, 749, overruled on another ground in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5.) Thus, the mere possibility a jury deciding the issue of guilt on the section 69 charge might draw the inference defendant advocates, does not preclude the conclusion Officer Lindberg had a reasonable basis to believe defendant’s threat to shoot Officer Lindberg between the eyes “once all this was done” was made to deter him from the future performance of his duty.
For the foregoing reasons, we conclude defendant’s threat would persuade an officer of “ ‘reasonable caution’ that the person to be arrested has committed a crime, ” specifically a violation of section 69. (Celis, supra, 33 Cal.4th at p. 673.) The magistrate therefore correctly determined there was probable cause to arrest defendant and denied his motion to suppress the evidence found during the search incident to his arrest.
The Motion to Suppress in the 2007 Case
In the 2007 case, defendant moved to suppress a firearm found in a patdown search during his detention and to suppress drugs found in the search incident to his arrest.
Evidence Relevant to the Motion to Suppress
On October 13, 2007, at 10:30 p.m., two anonymous 911 callers reported five or six shots had just been fired in or near the 300 block of Gertrude Avenue in North Richmond. Richmond Police Officer Eduardo Soto heard the dispatch and responded to the scene which he knew to be an area with a high rate of drug crimes, shootings and gang-related activity. Since other officers had already reached the 300 block of Gertrude Avenue, Officer Soto proceeded one block north to set up a perimeter on the 300 block of Chelsey Avenue. From this position Officer Soto could see the 200 and 400 blocks of Chelsey. Within three minutes of hearing the initial dispatch, Officer Soto saw four individuals walking eastbound down the 300 block of Chelsey. They were the only people that Officer Soto could see in any direction. One or two of these individuals kept turning and looking back at the patrol car as they walked. Officer Soto estimated if these individuals had started walking from the 300 block of Gertrude they were the appropriate distance away. For these reasons, he decided to detain them to determine whether they had any connection to the reported shots.
Officer Soto turned on his overhead lights and, for his safety, shined a spotlight on the individuals and told them to turn around and place their hands on the fence behind them. Three of them complied, but defendant dropped his hands from the fence toward his waistband. After defendant repeated this behavior in response to Officer Soto’s commands that he keep his hands on the fence, Officer Soto decided to patsearch him for weapons. He placed defendant in a control hold. A struggle ensued during which defendant again reached for his waistband. Officer Soto regained control and pulled a loaded handgun out of defendant’s waistband. Officer Soto placed defendant under arrest, and during a search incident to arrest found.33 grams of heroin, 0.18 grams of cocaine base, and a large sum of cash in defendant’s pockets.
The Magistrate’s Ruling
The magistrate found Officer Soto had reasonable suspicion to detain defendant based upon the information in the anonymous calls, and the observation minutes later that defendant and the other men with him were the only people within a block of the area where the shots had reportedly been fired. The magistrate further found the patsearch for weapons was justified because Officer Soto was responding to a report of shots being fired, and defendant made repeated attempts to reach for something in his waistband instead of complying with the command to keep his hands visible. Discovery of the handgun provided probable cause to arrest, and the search incident to arrest led to the discovery of the drugs in defendant’s pockets.
Defendant contends, as he did below, that the firearm found in the patdown search and the drugs found in the search incident to his arrest should have been suppressed because: (1) Officer Soto had no reasonable suspicion to support making the investigatory stop, and (2) Officer Soto had no basis to perform a patdown search for weapons.
The Investigatory Stop Was Lawful
An officer may temporarily detain a person for the purpose of further investigation if the officer can identify specific and articulable facts warranting a reasonable suspicion the individual is involved in criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7; Terry v. Ohio (1968) 392 U.S. 1, 30 (Terry); People v. Wells (2006) 38 Cal.4th 1078, 1083 (Wells).) We examine the “totality of the circumstances” in assessing whether a “particularized and objective basis” supports the detention. (United States v. Cortez (1981) 449 U.S. 411, 412, 417; see People v. Souza (1994) 9 Cal.4th 224, 230-231.) In so doing, we avoid a “divide and conquer approach” that considers factors in isolation and blanket rules that categorically assign no weight to certain kinds of observations. (United States v. Arvizu (2002) 534 U.S. 266, 273-278.) Consideration of the totality of the circumstance permits “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.]” (Id. at p. 273.)
Here, the totality of circumstances consisted of the following: The receipt of two anonymous 911 calls reporting multiple shots being fired in a residential area. Both callers reported hearing the shots in a particular block. Officer Soto knew this block was located in a high-crime area. Officer Soto arrived on the scene within three minutes of hearing the dispatch. It was late at night. Defendant and the three other men with him were the only people Officer Soto could see in the area. They were walking only a block away from the scene of the reported shots, and one or two of these individuals kept turning and looking back at the patrol car.
Under “the totality of the circumstances” standard, whether reasonable suspicion exists is necessarily based on the particular facts of each case. Nonetheless, the factors Officer Soto relied upon are remarkably similar to those held sufficient to support a detention in People v. Conway (1994) 25 Cal.App.4th 385, 390 (Conway). In Conway, a police officer promptly responded to a dispatch concerning a very recent report of a burglary. He had no description of the suspects, or of a car, but stopped the only vehicle in the immediate area. (Id. at p. 388.) The court upheld the detention. The court acknowledged the officer “had no description of the suspects and did not know if they had a car.” (Id. at p. 390, italics added.) Yet, “the information he received about criminal activity was very current. Less than two minutes after receiving the report of a burglary in progress, he saw a car leaving the area of the reported burglary. The time was approximately 3:00 a.m., and the officer saw no one else in the area. Under the circumstances, it was objectively reasonable for the officer to suspect the car’s occupants were involved in the burglary.” (Ibid.) The court recognized “that driving in a residential area early in the morning is consistent with lawful activity. ‘But the possibility that the circumstances are consistent with lawful activity does not render a detention invalid, where the circumstances also raise a reasonable suspicion of criminal activity. The public rightfully expects a police officer to inquire into such circumstances; indeed the principal function of the investigative stop is to resolve that ambiguity.’ [Citation.]” (Ibid.) It therefore concluded that because “Officer Judd acted in an objectively reasonable manner in stopping and detaining defendant for investigation, the trial court properly denied the motion to suppress evidence.” (Ibid.)
Similarly, here, although Officer Soto did not have a description of the shooters, two different callers pinpointed the shots as having come from a particular area, and the information was very recent. When Officer Soto set up a perimeter a block away, defendant and the other men with him were the only people in the area. It was late enough at night that the streets in the immediate vicinity were deserted except for defendant and his companions, several of whom behaved in a manner indicating sensitivity or nervousness about the arrival of a police officer. Considered cumulatively, these are the type of circumstances in which the public would rightfully expect a police officer to conduct further investigation to resolve any ambiguity about whether defendant’s presence was innocent or related to the reports of recent gunfire. (Conway, supra, 25 Cal.App.4th at p. 390.)
Defendant takes a divide and conquer approach to these factors, and incorrectly attempts to create blanket rules precluding giving them any weight. Specifically, he contends Officer Soto did not have reasonable suspicion to conduct the investigatory stop because: (1) mere presence in a high-crime area and looking back at the patrol car is entirely reconcilable with innocent activity; and (2) in the absence of any description of the person or persons who fired shots, or a report of predicted behavior that Officer Soto observed, or other corroboration, information provided by anonymous calls and defendant’s proximity to the scene of reported gunfire cannot support a reasonable suspicion to detain defendant.
Mere presence in a high-crime area, or even flight or other nervous behavior in the presence of police officers will not alone justify detention. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124.) Nonetheless, “[a]n area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (People v. Souza, supra, 9 Cal.4th at p. 240.) “Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning” to police observation of activity that could be consistent with either innocent or criminal activity. (Id. at p. 239.) “ ‘[W]e must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.’ [Citation.]” (Id. at p. 241.) Officer Soto’s knowledge of the reputation of the area was but one of several factors, which also included defendant’s temporal and spatial proximity to the reports of gunfire, it was relatively late at night, no one else was in the area, and several members of defendant’s group kept looking back at the patrol car. (See Illinois v. Wardlow, supra, 528 U.S. at p. 124 [“nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”]; see also In re H.M. (2008) 167 Cal.App.4th 136, 144-145 [an experienced officer may consider context in which nervous behavior is observed, including the fact that it is a high-crime area].) Viewed collectively, these factors reasonably suggested defendant’s presence could have some connection to the recently reported shots in the near vicinity.
Nor is there any blanket rule that the absence of a description of the suspect or get-away vehicle precludes reliance upon anonymous calls of suspected criminal activity. An anonymous “citizen’s tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety.” (Wells, supra, 38 Cal.4th at p. 1083, italics added.)
Our Supreme Court in Wells, supra, 38 Cal.4th at pages 1084, 1087-1088, and again in People v. Dolly (2007) 40 Cal.4th 458, 467 (Dolly), rejected a blanket rule requiring corroboration or police observation of predicted behavior before the police can rely upon information in an anonymous citizens tip. (Dolly, at pp. 464-465, 470.) Instead, it held the public interest in safety must be weighed against the individual’s right to be free from arbitrary governmental intrusion. When the risk to the public is high, an anonymous tip made by a 911 call may justify a temporary detention, even without corroboration or observation of predicted behavior. (Id. at p. 464.)
The court in Dolly explained one of the dangers of a rigid rule requiring corroboration or observation of predicted behavior before an officer may detain a person based upon an anonymous tip as follows: “ ‘[A]ccording no weight to “anonymous” tips in the reasonable suspicion calculus will undermine the ability of concerned residents to report illegal activity and to thereby make their neighborhoods more safe. Residents of neighborhoods are in the best position to monitor activity on the streets. But residents, also fearful of the consequences, may not always wish to identify themselves and volunteer their names. According no weight as a matter of law to such “anonymous” tips would only discourage concerned residents from even calling the police, would burden the rights of ordinary citizens to live in their neighborhoods without fear and intimidation, and would render citizens helpless in their efforts to restore safety and sanctity to their homes and communities.’ ” (Dolly, supra, 40 Cal.4th at p. 468.)
The court in Dolly distinguished Florida v. J.L. (2000) 529 U.S. 266 (J.L.), a case upon which defendant relies, because J.L. involved only an anonymous tip of gun possession that did not present an imminent threat to public safety, there was no information as to the source of the caller’s knowledge, and there was no indication whether the caller was reporting something personally observed moments ago or stale, second-hand information. (Dolly, supra, 40 Cal.4th at p. 468.) The court also contrasted the anonymous tip in J.L. with a call processed via the 911 system, which “ ‘carries enhanced reliability not found in other contexts’ ” and is “ ‘entitled to greater reliability... because the police must take 911 emergency calls seriously and respond with dispatch.’ ” (Dolly, at p. 467.) The call in Dolly was a first-hand contemporaneous, report of an assault with a firearm presenting a threat to public safety requiring immediate response, and the caller gave a detailed description of the perpetrator and his location. (Id. at pp. 461, 471.)
Defendant attempts to distinguish Dolly on the ground the caller in that case provided a physical description, whereas here there was none. We do not read Dolly to require that the caller provide a physical description, especially if the activity reported poses a high risk to public safety and other factors support the reliability of the report and demonstrate the information is not stale. Here, there is no question the reported conduct of “shooting a gun on a residential street ‘posed a grave and immediate risk’ to ‘anyone nearby.’ ” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1397.) Moreover despite the absence of a description, there were other indicia of reliability. Not one, but two callers reported hearing multiple shots late at night in a residential area known to have a high rate of shootings and drug trafficking. Although neither caller described the person or persons firing the shots, the fact each caller independently reported hearing the shots in an area Officer Soto knew to have a high-crime rate, and both reported the shots occurred in approximately the same location, provided some corroboration shots had been fired. Moreover, the information was not stale because Officer Soto responded to the emergency dispatch within minutes of hearing it. He also observed defendant walking a block from where the shots reportedly had just been fired, and defendant and the men accompanying him were the only people Officer Soto could see in the vicinity. (See In re Richard G. (2009) 173 Cal.App.4th 1252, 1257-1258 [anonymous contemporaneous call of late night disturbance involving a firearm in front of a particular residence in known gang territory, coupled with description of clothing and direction in which individuals involved were walking, supported detention and patsearch for weapons]; see also Conway, supra, 25 Cal.App.4th at p. 390 [recognizing absence of any other persons in the vicinity of recently reported crime as a factor supporting reasonable suspicion].)
We conclude, viewed collectively, the information from the callers, combined with the other facts known to Officer Soto, constituted specific and articulable facts warranting a reasonable suspicion defendant or his companions could have some connection to the recently reported shots in the near vicinity, and therefore it was lawful to initiate an investigatory stop to dispel or confirm the reasonable suspicion. (United States v. Sokolow, supra, 490 U.S. at p. 7; Terry, supra, 392 U.S. at p. 30; Wells, supra, 38 Cal.4th at p. 1083; In re Richard G, supra, 173 Cal.App.4th at pp. 1257-1258; People v. Lindsey, supra, 148 Cal.App.4th at p. 1401 ; Conway, supra, 25 Cal.App.4th at p. 390.)
The Patdown Search for Weapons Was Lawful
Once defendant was lawfully detained his behavior justified the subsequent patsearch for weapons. “[A]n officer has the authority to conduct a reasonable search for weapons where that officer has reason to believe a suspect is armed and dangerous, regardless of whether he has probable cause to arrest the individual for a crime. [Citation.] Further, the officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074, citing Terry, supra, 392 U.S. at p. 27.)
Since Officer Soto was responding to reports of recent gunfire, he reasonably suspected the perpetrators would be armed. He was not required to put his own life at risk until he resolved the question whether defendant and the other men were connected to the recent gunfire. He therefore acted reasonably by requiring the men to keep their hands in sight on the fence during the investigatory stop. Defendant’s repeated failure to follow Officer Soto’s command to keep his hands on the fence and attempts to reach for his waistband, provided ample reason to suspect he had a weapon and to conduct a patsearch for weapons to ensure officer safety. (People v. Orozco (1981) 114 Cal.App.3d 435, 445 [patdown for weapons during an investigatory stop justified when officer had reason to suspect detainee involved in recent report of unlawful discharge of a weapon].) Once Officer Soto found the weapon, he had probable cause to arrest defendant, and defendant was then lawfully subject to search.
The Motion to Suppress in the 2006 Case
In the 2006 case, defendant moved to suppress the cocaine found in his pocket during a search incident to arrest.
Evidence Relevant to the Motion to Suppress
On October 17, 2006, Inspector Shawn Pate and five or six other officers met at an intersection in North Richmond to execute an arrest warrant for one Michael Black. The warrant for Black was based upon his involvement as an accomplice in “a homicide that had taken place several years” earlier. Inspector Pate, who had spent the last two years investigating homicides, other violent crimes, and narcotics activity related to gangs, knew the intersection to be a high-crime area and that Black frequented that particular intersection. Inspector Pate was aware of “numerous shootings... robberies... [, ] murders” and daily drug sales on that corner. He personally had been involved in three or four murder investigations involving the group of individuals who regularly loitered at the intersection, and also had contacted individuals selling narcotics there 50 to 60 times and had conducted “countless” hours of surveillance of the activity at that corner. He was aware of “lots of weapons violations” at the intersection
When the officers arrived to execute the arrest warrant, six to ten people were standing in a group. Because the officers were aware of frequent weapons violations at or near this intersection, they drew their weapons as they approached Black. As the officers moved toward Black, one man ran away and several others walked away. Three or four other men, including defendant, raised their hands into the air, got down on their knees, and began to lie down on the ground. According to Inspector Pate, this type of behavior in response to approaching law enforcement officers was common in this area. Pate did not hear any officer order these men to get down on the ground, and did not himself order them to lie down, or not to move. Defendant’s brother, who was also present, testified to the contrary that the police ordered all the men not to move as they approached with guns drawn.
After Black was arrested, Inspector Pate returned his gun to his holster. Pate walked over to where defendant and two or three other men were still on the ground. Pate explained they had only come to arrest Black as part of a murder investigation, but advised defendant and the others they were loitering in an area known for drug trafficking. Pate noted defendant was clutching a lot of money in his left hand. He asked whether defendant had a job. Defendant replied he did not. Defendant also denied he had anything illegal on him, and when Inspector Pate asked whether he could search defendant, defendant agreed. Pate found rock cocaine in defendant’s front right pocket.
Although Inspector Pate did not know how much defendant was holding, after he arrested defendant, he counted all the money found in defendant’s possession, and it totaled $131.
The Magistrate’s Ruling
In denying the motion to suppress the magistrate ruled: (1) A detention occurred when the officers ordered everyone not to move as they approached Black with guns drawn, but the detention was for officer safety and reasonable under the circumstances; and (2) Defendant consented to the search, and his consent was not coerced by an unduly prolonged detention or any other circumstances.
The Detention Was Lawful
A detention occurs when the person contacted reasonably believes he or she is not free to leave because of physical restraint, threat of force or assertion of authority. (United States v. Mendenhall (1980) 446 U.S. 544, 554.) Even assuming, as the magistrate concluded, a detention occurred here, it was lawful.
We therefore do not need to reach the Attorney General’s argument that no detention occurred.
When executing an arrest or search warrant it is permissible to detain occupants, or even other persons present, to ensure officer safety, even where the police do not suspect that person of any crime. (People v. Glaser (1995) 11 Cal.4th 354, 374 [detention during execution of search warrant]; People v. Hannah (1996) 51 Cal.App.4th 1335, 1343 [detention during execution of arrest warrant]; see also Maryland v. Wilson (1997) 519 U.S. 408, 412, 414-415 [for officer safety, occupants of a vehicle may be ordered out during a traffic stop].)
The circumstances known to the officers were more than sufficient to permit the detention of the men on the street corner for officer safety reasons and to preclude any interference with execution of the warrant: The officers were executing an arrest warrant for a person suspected of being an accomplice to a “homicide.” The warrant was being executed on a street corner known to be frequented by individuals who also were involved in “three or four” murder investigations. The corner was known to be the site of frequent weapons violations and daily narcotics sales activity. When the officers arrived at the corner, Black was surrounded by several other men, and the officers did not know what relationship they had to Black. In light of these circumstances, the detention of the individuals standing on the corner near Black was eminently reasonable.
The Search Was Consensual
The voluntariness of consent is a question of fact to be determined from the totality of circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227; People v. Boyer (2006) 38 Cal.4th 412, 445-446.) Consent is voluntary if it “was freely and voluntarily given, ” meaning it was not coerced “ ‘by threats or force, or granted only in submission to a claim of lawful authority.’ [Citation.]” (People v. Boyer, supra, at pp. 445-446.)
Defendant does not dispute he consented to the search, but argues his consent was involuntary because the detention was unduly prolonged in time and scope, beyond what was necessary to effectuate Black’s arrest. (See Florida v. Royer (1983) 460 U.S. 491; People v. Russell (2000) 81 Cal.App.4th 96, 101 [a detention must be limited in scope and duration consistent with the purpose of the detention, and an unduly prolonged detention may vitiate the validity of consent].) He argues the moment Black was placed under arrest the need to detain others in the immediate area for officer safety ceased and the detention therefore was already unduly prolonged by the time Pate walked over and began to talk to him about the money he held in his hand.
The underlying premise of defendant’s argument is that defendant was still detained. Yet, Pate testified he returned his gun to his holster after Black was arrested. When he walked over to defendant Pate first explained the officers were there only to arrest Black, that the police were “not there” for the other men and the police had now “secured” Black. We reject defendant’s suggestion that no reasonable person would believe the detention was over unless Pate explicitly used the words, “the detention is over.” Inspector Pate’s words and actions conveyed the same meaning, and under the circumstances a reasonable person would conclude the detention was over and they were now free to leave.
But even assuming arguendo the detention continued, other circumstances developed during the initial detention providing reasonable suspicion to prolong it, and Inspector Pate acted promptly and diligently to confirm or dispel his suspicion by reasonable means. “Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit... [and]... the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (People v. Russell, supra, 81 Cal.App.4th at pp. 101-102.)
Pate’s announcement the police had “secured” Black, coincided with his observation that defendant had a large amount of money clutched in his hand. Pate was not required to disregard this observation just because Black was already in custody. Pate testified that after he made this announcement he engaged “in conversation regarding loitering for the purpose of selling narcotics.” The corner where Black was arrested was a well-known site of “daily” drug sale activity. He had made so many arrests for drug trafficking at that location he “couldn’t even put a number to that.” Inspector Pate asked defendant about the money and whether he had a job. Defendant replied he did not. The observation of the large amount of cash and defendant’s response, coupled with Pate’s knowledge of the extremely high rate of drug trafficking at that corner, provided a reasonable suspicion the cash might have been obtained through illegal activity.
We also note defendant incorrectly assumes the initial grounds for detention ceased the moment the officers took Black into custody. The situation was still volatile and potentially dangerous as long as Black and the officers remained on the scene. As the magistrate aptly put it, “you’re in an extremely high-crime area where there are officer safety issues that include multiple shootings, violent behavior, as well as dope dealing. And let’s be practical about what that means. If you’re there to arrest somebody for a violent offense the reality is they’re not going to take care of everything and get to everyone... within five minutes.” Based upon a defense exhibit, the magistrate found the police arrived on the scene at 11:11 a.m. and, although the exhibit does not “name the individuals who are being transported” the first entry for transport is 11:45 a.m. We, however, need not rely upon Black’s continued presence as justification for any continued detention, because simultaneously with Pate’s announcement that Black had been taken into custody, Pate observed the cash in defendant’s hand, giving rise to reasonable suspicion warranting prolonging the initial detention.
Inspector Pate diligently pursued “a means of investigation reasonably designed to confirm or dispel” the suspicion quickly by asking defendant if he had anything illegal on him, and whether he would consent to a search. (People v. Russell, supra, 81 Cal.App.4th at pp. 101-102.) Defendant does not dispute that once asked, he consented to the search. We conclude his consent was not vitiated by an unduly prolonged detention, and uphold the magistrate’s finding defendant’s consent to the search was voluntary.
DISPOSITION
The judgment is affirmed.
We concur: MARCHIANO, P. J. MARGULIES, J.