Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080323, Charles Horan, Judge. Reversed and remanded with directions.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Following the denial of his motion to suppress evidence, Eric Antonio Williams pleaded no contest to one count of receiving stolen property. On appeal Williams contends he was unlawfully detained based on an anonymous tip and the stolen property found in his car as a result of that detention should have been suppressed. We agree and reverse.
Pursuant to the plea agreement Williams was sentenced to the upper term of three years in state prison.
FACTUAL BACKGROUND
The evidence at the suppression hearing, held in conjunction with Williams’s preliminary hearing, established that Erika Pinto drove into a restaurant parking lot at approximately 9:15 a.m. on April 1, 2007 and passed a gold-colored Honda leaving the parking lot. Pinto parked her car and went into the restaurant. She returned to her car about five minutes later and noticed her purse was missing. It contained her cellular telephone, bracelet and notepad.
Later that morning, Los Angeles County Deputy Sheriff John Becker drove to a Wells Fargo Bank branch in Diamond Bar in response to a radio communication that a possible robbery had just occurred. The radio call relayed information from an anonymous source, who had reported a Black male had possibly taken property from a Wells Fargo Bank customer. The anonymous caller added the Black male was currently in a car in the parking lot, license plate number 3FGR419. According to the anonymous caller, the customer would be found near the bank’s automatic teller machine (ATM).
When Deputy Becker arrived at the bank parking lot, he saw a gold-colored Honda with license plate number 3FGR419 parked in the lot about 400 feet from the ATM. A Black male, later identified as Williams, was inside the car, reaching into the back seat area toward the passenger floorboard. Deputy Becker testified he “had [Williams] exit his vehicle and detained him for possible robbery investigation.” Becker asked Williams for identification; Williams responded that his identification was on the front seat. Becker retrieved the wallet, opened it and found a credit card in the name of “Brian Hughes.” A cellular telephone then began to ring inside the car. Becker picked up the telephone from the back seat of the car and asked Williams about it and the credit card. Williams said he had no idea who owned either item.
After examining the cellular telephone, Deputy Becker called the most recently stored number. He spoke to Pinto’s boyfriend and then to Pinto herself. She informed Becker of the theft of her cellular telephone as well as other personal items. From the backseat of Williams’s car, Becker recovered the missing bracelet and notepad, which Pinto subsequently identified as belonging to her.
Williams did not testify at the suppression hearing, and the defense presented no evidence other than through its cross-examination of Deputy Becker.
Following argument by counsel the trial court denied the motion to suppress, finding Williams had been properly detained based on what Deputy Becker knew at the time: An anonymous caller had reported a specific crime, robbery, that had just occurred at a specific location, the Wells Fargo Bank parking lot. Upon his arrival at the bank, Becker saw Williams, whose physical description and car matched the information received from the anonymous caller. The court concluded Becker had reasonable suspicion at that point to detain Williams for a robbery investigation and the subsequent seizure of items from Williams’s car was proper.
DISCUSSION
1. Standard of Review
In reviewing the denial of a motion to suppress evidence, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 342; People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (Zamudio, at p. 342; People v. Glaser (1995) 11 Cal.4th 354, 362.) Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
2. The Trial Court Improperly Denied Williams’s Motion to Suppress
a. The law governing detentions justified by an anonymous tip
(i) The requirement of reasonable suspicion for a detention
Police contacts with individuals fall into “three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; see People v. Hughes (2002) 27 Cal.4th 287, 327-328.) A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual’s liberty. (People v. Zamudio, supra, 43 Cal.4th at p. 341; Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790; People v. Souza (1994) 9 Cal.4th 224, 231.) It was undisputed in this case a detention occurred as soon as Williams complied with Deputy Becker’s request to step out of the gold-colored Honda.
No detention occurs within the meaning of the Fourth Amendment when an officer, alone and on foot, approaches an individual in a parked car and asks him or her in a normal tone of voice to step out of the car and to produce identification. (See People v. Rivera (2007) 41 Cal.4th 304, 309; In re Manuel G., supra, 16 Cal.4th at p. 821.) “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194, 201-202 [122 S.Ct. 2105, 153 L.Ed.2d 242]; see Wilson v. Superior Court, supra, 34 Cal.3d at p. 789 [no detention if officer approaches individual in public place and “put[s] questions to him if the person is willing to listen”].) However, neither the People in arguing the seizure of the items from Williams’s car nor the trial court in denying the motion to suppress suggested the initial encounter between Deputy Becker and Williams was consensual.
Deputy Becker’s detention of Williams and the subsequent seizure of property from his car were valid only if Becker had a reasonable, articulable suspicion Williams had been, currently was or was about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889]; People v. Wells (2006) 38 Cal.4th 1078, 1083.) “The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.’” (Wells, at p. 1083, accord, United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed.2d 1].) In evaluating whether the standard of objective reasonableness has been satisfied, we must examine the “totality of the circumstances” in each case to determine whether a “particularized and objective basis” supports the detention. (United States v. Cortez (1981) 449 U.S. 411-412, 417 [101 S.Ct. 690, 66 L.Ed.2d 621]; see People v. Souza (1994) 9 Cal.4th 224, 231 [police officer must “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”].) “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.] Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” (United States v. Arvizu (2002) 534 U.S. 266, 273-274 [122 S.Ct. 744, 151 L.Ed.2d 740].) If the officer has such an objectively reasonable suspicion, a defendant’s motion to suppress evidence seized in a search incident to the detention is properly denied. (People v. Daugherty (1996) 50 Cal.App.4th 275, 288-289; People v. McDonald (2006) 137 Cal.App.4th 521, 530.)
(ii) United States Supreme Court decisions on anonymous tips
The United States Supreme Court has twice expressly considered when an investigative detention based on an anonymous tip is justified. In Florida v. J. L. (2000) 529 U.S. 266 [120 S.Ct. 1375, 146 L.Ed.2d 254] (J.L.) an anonymous telephone caller told the police a young Black man standing at a specific bus stop and wearing a plaid shirt was carrying a gun. Officers responding to the scene saw three young Black men at the bus stop, one wearing a plaid shirt. The men engaged in no suspicious conduct. The officers approached the individual in the plaid shirt, ordered him to raise his hands and frisked him; they found a gun in his pocket. (Id. at p. 268.)
The Supreme Court held the pat search and subsequent seizure of the gun violated the Fourth Amendment: “[T]he officers’ suspicion that [the defendant] was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’” (J.L., supra, 529 U.S. at p. 270.) Recognizing “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop,’” the J.L. Court found no such indicia in the case before it. (Ibid.) “All the police had to go on... was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant].” (Id. at p. 271.) The fact the tip was corroborated as to the “subject’s readily observable location and appearance” was insufficient to justify the detention because this information did not show the tipster was knowledgeable “about the concealed criminal activity.” (Id. at p. 272.)
In Alabama v. White (1990) 496 U.S. 325, 329-332 [110 S.Ct. 2412, 110 L.Ed.2d 301] (White), in contrast, decided 10 years before J.L., the Supreme Court held an anonymous tip had sufficient indicia of reliability and was sufficiently corroborated to authorize an investigatory stop. In White an anonymous telephone tip the defendant would leave a certain address at a specific time in a certain vehicle and would go to a specific location with a brown attaché case containing cocaine was corroborated by police observations of the defendant leaving the first location in the described vehicle and driving to the second location. The corroboration of the informant’s predictions of the defendant’s future behavior, the Court explained, demonstrated the informant had special familiarity with the defendant’s affairs. That knowledge was sufficient to support an investigatory stop. (Id. at pp. 328-332.) In distinguishing White, the J.L. court cautioned, “Standing alone, the tip would not have justified a [detention]. [Citation.] Only after police observation showed that the informant had accurately predicted the woman’s movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.... Although the court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline. Knowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband.” (J.L., supra, 529 U.S. at pp. 270-271.)
(iii) California Supreme Court decisions on anonymous tips
The issue of investigatory detentions based on anonymous tips has also been addressed in two recent California Supreme Court cases. In People v. Wells (2006) 38 Cal.4th 1078 (Wells), police received an anonymous tip of a “possibly intoxicated driver ‘weaving all over the roadway.’” Two or three minutes later an officer located and immediately stopped the vehicle. The officer did not personally observe the vehicle weaving or otherwise violating any traffic laws. (Id. at p. 1081.) Pointing to the “exigent circumstances” created by drunk drivers on our roadways, the Supreme Court held the anonymous tip was itself sufficient to raise a reasonable suspicion justifying the traffic stop. (Id. at pp. 1083-1084.)
The Wells court distinguished J.L. in four respects. First, the report of a possibly intoxicated driver swerving on the road “poses a far more grave and immediate risk to the public than a report of mere passive gun possession.” (Wells, supra, 38 Cal.4th at p. 1087.) Second, “doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller.” (Ibid.) Third, a brief vehicle stop is less intrusive than “the ‘embarrassing police search’ on a public street” involved in J.L. (Wells, at p. 1087.) And finally, the informant gave a “relatively precise and accurate description... regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report.” (Id. at p. 1088.)
In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), decided the year after Wells, police had received an anonymous tip that a light-skinned Black male had “‘just pulled a gun”’ on the caller and had mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the driver’s seat of a gray Nissan Maxima parked at a specific location near a recycling center. Two minutes later, the informant called again and said he had just driven by the Nissan and determined it was black, not gray. (Id. at p. 462.) At about the time of the second call, officers received a radio dispatch about a light-skinned, Black male with a cast on his arm in a gray Nissan Maxima in the location indicated by the informant who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. The defendant, who was sitting in the driver’s seat, matched the physical description that had been given and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. A loaded,.38-caliber revolver was discovered under the front passenger seat of the car. (Ibid.)
The Dolly Court concluded, under the totality of the circumstances, the detention did not violate the defendant’s Fourth Amendment rights. Among those circumstances was the “‘grave and immediate risk’” posed to the caller and anyone nearby by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) According to the Court: “‘[A]llegations of the threatening use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action’ and ‘is materially distinguishable from the anonymous tip at issue in... J. L.,’ which involved only an allegation of a concealed weapon.” (Ibid.)
The Dolly Court was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the Court, “The police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468, quoting from United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, at p. 468.)
b. Deputy Becker’s detention of Williams was not objectively reasonable
The circumstances leading to Williams’s detention are substantially the same as those in J.L., supra, 529 U.S. 266: There was an anonymous telephone tip. The tip contained no internal indicia of the basis for, or reliability of, the informant’s information and did not include predictive information that could be corroborated by police observation. That a vehicle matching the description and with the reported license number was present at the location identified at the time did not corroborate the criminal elements of the tip. Indeed, the most significant fact that could have corroborated the tip—the presence of a robbery victim near the bank’s ATM—proved not be to true or, at least, was not confirmed by Deputy Becker prior to his detention of Williams.
Moreover, unlike in Wells, supra, 38 Cal.4th at page 1087, and Dolly, supra, 40 Cal.4th at page 465, the conduct reported by the anonymous caller here did not pose a “grave and immediate risk to the public.” In Wells the Court explained “‘a drunk driver is not at all unlike a “bomb,” and a mobile one at that.’” (Wells, at p. 1086.) In Dolly the Court emphasized “pointing a revolver at the caller in an apparent threat to shoot him posed a grave and immediate risk not only to the caller but also to anyone nearby.” (Dolly, at p. 465.) To be sure, robbery is a violent crime and generally poses a threat to public safety (although there was no report that a weapon had been used in connection with the “possible robbery”). But the same cannot be said of the reported possible robbery of a bank patron who possibly had some property stolen in the vicinity of an ATM. The anonymous tip was simply too vague, and the criminal conduct reported too uncertain, to justify the detention of Williams.
In particular, the anonymous tipster’s failure to describe the robbery victim, how the robbery occurred or what property was taken strongly suggests—in contrast to Dolly, supra, 40 Cal.4th at page 465—the anonymous informant was neither a victim of the purported robbery nor had witnessed the offense first-hand. (See also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, 941 [precise descriptions given by caller demonstrated caller had been an eyewitness to the defendant’s reckless and dangerous driving].) It also implies the informant may have been providing false information and wished to avoid the risk of being held accountable. (See J.L., supra, 529 U.S. at p. 275 (conc. opn. of Kennedy, J.)
Finally, there was nothing about Williams’s behavior that called for immediate police intervention to protect the public. Unlike the situation confronted by the police in Wells, supra, 38 Cal.4th 1078and Dolly, supra, 40 Cal.4th 458, Williams’s reported conduct of sitting in a parked car and his observed behavior of reaching toward the backseat were not inherently dangerous, potentially violent or even suspicious. (See J.L., supra, 529 U.S. at p. 268.)
In sum, the facts in this case are not sufficiently distinguishable from the facts of J.L., supra, 529 U.S. 266 to deviate from its requirement that the reliability of an anonymous tip be established to justify an investigatory definition. Although Deputy Becker immediately corroborated several innocent aspects of the anonymous tip, he did not witness any conduct or obtain other information at the scene to corroborate the tip’s assertion that unlawful activity had occurred. Moreover, the conduct reported in the tip did not pose the same sort of “grave and immediate risk to the public” warranting Becker’s intervention without such corroboration. (See Wells, supra, 38 Cal.4th at p. 1087; Dolly, supra, 40 Cal.4th at p. 465; see also Lowry v. Gutierrez, supra, 129 Cal.App.4th at pp. 939-940.)
DISPOSITION
The judgment of conviction is reversed. On remand the trial court is directed to vacate its order denying Williams’s motion to suppress evidence and to enter a new order granting the motion. The trial court is further directed to permit Williams to withdraw his plea of no contest within 30 days after issuance of the remittitur. If Williams does not move to withdraw his plea within that time, the judgment of conviction shall be reinstated.
We concur: WOODS, J., ZELON, J.