Lead Opinion
Opinion
In People v. Wells (2006)
Background
Defendant Norman J. Dolly was convicted after a jury trial of being a felon in possession of a firearm and, after a bench trial, was found to have suffered a prior strike conviction within the meaning of the three strikes law. He was sentenced to four years in prison. The court also found defendant had violated probation and sentenced him to a consecutive eight-month term.
In this appeal, defendant challenges the denial of his motion to suppress the firearm and all statements he made concerning the firearm. The evidence at the hearing on the suppression motion revealed the following:
At 3:16 p.m. on April 17, 2002, an unidentified man placed a call to 911. The call was received by the California Highway Patrol and then transferred to the Los Angeles Police Department. The caller reported that a light-skinned African-American male had “just pulled a gun” on him and had mentioned a gang name. The caller said he felt the perpetrator “was gonna shoot me right there at that minute.” According to the caller, the perpetrator had a bandage over his left hand, as though it had been broken, and was in the driver’s seat of a gray Nissan Maxima
At 3:20 p.m., the tipster-victim made a second call to 911. Identifying himself as “Drew,” he said that he had just driven by the Nissan Maxima again and wanted to correct his description of the vehicle. It was black, not gray.
Around 3:20 p.m., Los Angeles Police Officer Frank Dominguez and his partner, Officer Goldstein, received a radio call about a man with a gun at Jefferson Boulevard and Ninth Avenue. The perpetrator was described as a light-skinned African-American male with a cast on his arm, in a possibly gray Nissan Maxima on the north side of Jefferson, and was said to have threatened the 911 caller with a gun. Two or three minutes later, the officers arrived at the scene and spotted a black Nissan Maxima parked on the north side of Jefferson, just east of Ninth. There were three people in the car. Defendant, who was sitting in the driver’s seat, matched the description provided in the radio dispatch. He also had a cast on his left arm.
Officer Dominguez ordered defendant to exit the vehicle and lie down in the street with his hands at his side. He also ordered the two passengers out of the vehicle. Neither of them was wearing a cast. A loaded .38-caliber blue steel revolver was found underneath the front passenger seat. (At trial, Detective Delicia Hernandez testified that defendant, during a postarrest interview, had admitted owning and possessing the revolver.)
Following the hearing, the superior court denied the motion to suppress, finding (1) that defendant’s Fourth Amendment rights were not implicated because he was on probation subject to a search condition, and (2) that the officers had reasonable suspicion defendant had committed a firearms offense before effecting the stop.
A divided panel of the Court of Appeal affirmed in an opinion published in part. The panel ruled first that the detention and search could not be justified by the probation search condition “since the responding officers were not aware of [defendant’s probation status or condition,” citing People v. Hester (2004)
We granted review on the limited issue of whether the anonymous tip was sufficient to justify defendant’s detention.
Discussion
An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. (Ornelas v. United States (1996)
“The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In mating our determination, we examine ‘the totality of the circumstances’ in each case.” (Wells, supra,
Indeed, we recently justified a detention based on an anonymous tip in Wells. There, an anonymous caller reported a 1980’s-model blue van traveling northbound on Highway 99 north of Bakersfield and weaving all over the roadway. Two or three minutes after receiving the dispatch report, a California Highway Patrol officer spotted a blue van traveling northbound on Highway 99, activated his patrol car lights, and stopped the van to investigate whether the driver was impaired. The officer had seen nothing to indicate the motorist was intoxicated but, after conducting an investigation at the scene, arrested the motorist for driving under the influence. (Wells, supra, 38 Cal.4th at pp. 1081, 1083.)
In upholding the detention, we observed that “a 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,
After balancing the public interest in safety and the individual’s right to personal security free from arbitrary interference by law enforcement officers (see People v. Thompson (2006)
Accordingly, Wells relied on the totality of the circumstances in distinguishing J. L. We explained first that a report of a possibly intoxicated driver weaving all over the roadway posed “a far more grave and immediate risk to the public than a report of mere passive gun possession.” (Wells, supra,
We said next that “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. Instances of harassment presumably would be quite rare.” (Wells, supra,
Consideration of these (and other factors) convinces us that the detention should be upheld in this case.
First, defendant’s conduct in 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. (U.S. v. Holloway (11th Cir. 2002)
Defendant’s suggestion that the emergency had ended in this case because the 911 call was “a report of an assault that had been completed, not one that is occurring” is not persuasive.
Indeed, defendant concedes that “an imminent threat to kill constitute^] an emergency situation” justifying a stop even when the intended victim is elsewhere, yet fails to distinguish the circumstances here. In our view, the interest in protecting human life, even if insufficient in this case to dispense entirely with the need to demonstrate the anonymous tip’s reliability (see J. L., supra,
Second, there is no reason to think that anonymous phoned-in tips concerning contemporaneous threats with a firearm are any more likely to be hoaxes than are anonymous phoned-in tips concerning a contemporaneous event of reckless driving. (Compare Terry-Crespo, supra,
Furthermore, “[m]erely calling 911 and having a recorded telephone conversation risks the possibility that the police could trace the call or identify [the caller] by his voice.” (Terry-Crespo, supra,
“There is the equal danger, moreover, that according 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.” (U.S. v. Perkins, supra,
Fourth, the caller supplied a plausible explanation for wanting to remain anonymous. He noted that defendant had uttered a gang name, worried that “I don’t have anyone to defend me from all this gang shit,” and explained that “if they find out I’m snitching, they’re going to kill me around here.” That the tipster “may be understandably reticent to give identifying information for fear of retaliation or danger” reduces the significance of his anonymity in analyzing the reliability of his report. (Holloway, supra,
Defendant relies on a handful of out-of-state decisions in urging us to deem this detention unlawful, but the cases are easily
We likewise decline to follow People v. Braun (2002)
“[T]here are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ ” (J. L., supra,
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. J., Chin, J., and Corrigan, J., concurred.
Notes
Defendant also challenges the trial court’s implied finding that Officer Dominguez was aware the 911 caller had been threatened with the gun, pointing out that the tape of the radio dispatch did not include the word “threat.” The challenge lacks merit. As defendant concedes, the radio broadcast included a number of police codes, any of which may have communicated the fact of the threat. Moreover, defendant has not shown that the taped broadcast constituted the totality of the communications received by the patrol officers. Consequently, he has not refuted Officer Dominguez’s direct testimony that he was aware, prior to the stop, the caller had been threatened with the gun. Finally, because defendant never argued below that the officers lacked knowledge of the contents of the 911 call, thereby denying the People the opportunity to offer contrary evidence, he has forfeited any challenge to the use of the caller’s statements. (Evid. Code, § 353; Anthony v. City of New York (2d Cir. 2003)
The fact that the call here was taped provides two additional safeguards against arbitrary police action. As defendant concedes, the existence of the tape eliminates “the specter of after-the-fact, police fabrication of an ‘anonymous informant.’ ” (Terry-Crespo, supra,
The unreasonable consequences of defendant’s position—i.e., that an anonymous tip uncorroborated by the officer’s observation of illegal activity or predicted behavior can never justify a detention—were demonstrated at oral argument. Defense counsel contended that the police would be unable to effect a stop of a vehicle in response to a tip that the driver had just abducted a young child from a nearby playground if the caller refused to disclose his or her identity. Under defendant’s approach, the police could do no more than follow the vehicle and watch helplessly as the driver entered the garage and closed the door.
Defendant relies also on People v. Jordan, supra,
Concurrence Opinion
I agree with the majority’s conclusion that the police in this case acted reasonably in detaining defendant, and that the trial court therefore properly denied defendant’s motion to suppress the fruits of that detention. Because I find the majority’s reasoning underlying its conclusion unpersuasive, I write separately to set forth my views.
I
In the afternoon of April 17, 2002, an unidentified man called the California Highway Patrol, whose dispatcher transferred the call to the Los Angeles Police Department. The caller reported that a light-complected African-American man had just pulled a gun on him. He said the suspect was wearing a bandage on his left hand and was sitting in the driver’s seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevard, near the comer of Ninth Avenue, in Los Angeles. The caller did not wish to give his name because the suspect had mentioned a gang
Within minutes after that second call, Los Angeles Police Officer Frank Dominguez, accompanied by his partner, Officer Goldstein, drove to the location in question. There they saw a man (defendant), who matched the caller’s description, seated in the driver’s seat of a black Nissan Maxima. They detained him and searched the car, finding a handgun under the front passenger seat.
Defendant was charged with possession of a firearm by a convicted felon. He moved to suppress the gun, claiming the detention and the ensuing car search violated his rights under the Fourth Amendment of the federal Constitution. The trial court denied his motion to suppress, and a jury thereafter found him guilty as charged. The Court of Appeal affirmed the conviction, rejecting defendant’s contention that the officers lacked reasonable cause to detain him.
II
The pertinent analysis to resolve the issue here is, in my view, as follows.
In the words of the United States Supreme Court: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security,’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot.” ’ [Citations.] [][] When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002)
Thus, this court must decide here whether, under the totality of circumstances, the anonymous calls described above gave the detaining officers a “ ‘particularized and objective basis’ for suspecting legal wrongdoing.” (Arvizu, supra,
In J. L., the police received an anonymous tip that an African-American man in a plaid shirt at a specified bus stop was carrying a concealed firearm. The police found a man matching that description at the bus stop in question. They detained him, patted him down, and found a gun. The United States Supreme Court held that the detention was illegal because the anonymous tip was insufficiently reliable to justify the detention. The court explained: “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
The facts of J. L., supra,
In this case, unlike J. L, the police did not have “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.” (J. L, supra,
For these reasons, the police officers here had a reasonable suspicion that defendant was engaged in criminal activity. Thus, their investigatory detention of defendant did not violate the Fourth Amendment, and the trial court properly denied defendant’s motion to suppress evidence. The majority comes to the same conclusion, but its analysis is different, as discussed below.
III
The majority gives four reasons why, in its view, the police had a reasonable suspicion that defendant was engaged in criminal conduct. First, it explains that defendant’s alleged act of pointing a gun at the caller posed a grave danger to the public. (Maj. opn., ante, at pp. 465-467.) Second, it states that “anonymous phoned-in tips concerning contemporaneous threats with a firearm are [no] more likely to be hoaxes than are anonymous phoned-in tips concerning a contemporaneous event of reckless driving” (id. at p. 467) and the call here was particularly reliable because it was recorded (id. at p. 467). Third, according to the majority, “the tipster-victim provided a firsthand, contemporaneous description of the crime as well as an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived.” (Id. at p. 468.) Fourth, the majority notes that “the caller supplied a plausible explanation for wanting to remain anonymous.” (Id. at p. 469.)
The first of the majority’s reasons (that the conduct reported to the police by the anonymous caller posed a danger to the public) has no bearing on the issue, which is whether the police could reasonably suspect that defendant was engaged in criminal conduct. This is why: The degree of danger posed by a suspect has no logical relationship to the reliability of the information provided. True, the high court in J. L. strongly hinted that in certain exigent circumstances—such as an anonymous tip that a suspect is carrying a bomb—the police may detain a suspect even without reasonable suspicion. (J. L., supra, 529 U.S. at pp. 273-274.) But by relying on facts pertaining to defendant’s dangerousness as proof that the police had reasonable cause to detain him, the majority here conflates two distinct and unrelated questions: first, whether the detaining officers have reasonable suspicion of criminal activity (the issue here); second, whether exigent circumstances justify a detention without reasonable suspicion.
Assuming for the sake of argument that here the existence of such exigent circumstances is at issue, in my view there was
The majority’s second reason for here upholding the detention—its conclusion that reports of threats with firearms are no more likely to be hoaxes than are reports of reckless driving, and that the call here was particularly reliable because it was recorded—is based primarily on this court’s recent decision in People v. Wells (2006)
Even if the majority’s decision in Wells, supra,
Nor am I persuaded by the majority’s heavy reliance on the circumstance that the anonymous call was recorded. In my view, the crucial question is not whether the call was recorded, but what the caller said; that is, whether “the dispatcher or arresting officer had any objective reason to believe that this tip had some particular indicia of reliability.” (J. L, supra, 529 U.S. at pp. 275-276 (conc. opn. of Kennedy, J.).)
The majority’s third and fourth reasons for upholding the detention—that the anonymous caller gave a firsthand description of the crime and a plausible reason for remaining anonymous—are generally similar to the reasons I have given for reaching the same conclusion, and I therefore have no quarrel with them. The majority, however, relegates these reasons to the end of its discussion, and it appears to regard them as less significant.
IV
For the reasons given above, I agree with the majority that the judgment of the Court of Appeal should be affirmed.
In her concurring opinion, Justice Werdegar concludes that an appellate court should not consider an anonymous caller’s tone of voice in determining the legality of a detention based on that call unless the “dispatcher or the police officer effecting the detention actually relied on the caller’s vocal tone in assessing his reliability.” (Cone. opn. of Werdegar, J., post, at p. 479, fn. 3, italics added.) In my view, an appellate court may consider the tone of the caller’s voice so long as it is objectively reasonable for the dispatcher to have done so. (J. L., supra, 529 U.S. at pp. 275-276 (cone. opn. of Kennedy, J.); see also Scott v. United States (1978)
Justice Werdegar’s concurring opinion also asserts that to permit consideration of an anonymous caller’s tone of voice “as a factor demonstrating reliability of an anonymous tip would potentially swallow the rule, for one can imagine that virtually all callers to police emergency numbers betray some agitation and emotion in their voices.” (Cone. opn. of Werdegar, J., post, at p. 479, fn. 3.) But this would be true only if an anonymous caller’s tone of voice could, by itself, establish the caller’s reliability. In my view, a caller’s tone of voice does not itself demonstrate the call’s reliability, but it is nevertheless a factor that appellate courts may consider in determining whether the call is sufficiently reliable to justify a detention.
Justice Werdegar’s concurrence also notes that here the parties did not discuss the anonymous caller’s tone of voice at the hearing on the motion to suppress evidence. True, but irrelevant. Because a tape recording of the telephone calls was admitted into evidence as an exhibit, it is part of the appellate record, and the caller’s tone of voice is relevant evidence that this court may consider.
Concurrence Opinion
I concur in the judgment. I write separately to explain why I do not join in the entirety of the majority’s reasoning.
For the second time in less than a year, this court has been asked to evaluate the
Wells posed a similar situation, but a majority of this court came to a different conclusion. In Wells, an anonymous caller reported the existence of a blue van traveling in a certain direction on the highway “ ‘weaving all over the roadway.’ ” (Wells, supra,
I dissented in Wells because the majority’s multiple stated rationales, alone or in combination, were unpersuasive in light of J. L., supra,
By contrast, the tipster in this case was not completely anonymous; he revealed his name was “Drew.” More importantly, he was an eyewitness to the illegal activity. He reported to police that someone matching defendant’s description had “just pulled a gun” on him and threatened to shoot him. A few minutes after his initial call, “Drew” called back to report that he had driven by the crime scene again and his initial description of the car was incorrect, further indicating he was actually at the scene and had personal knowledge of the crime.
These facts distinguish the instant case from Wells, supra,
I write separately because I cannot subscribe to the remainder of the majority’s analysis. The J. L. court explained that anonymous tips were different from those made by callers known to police, both because the reputation of known callers can be assessed and known callers can be held responsible if their allegations turn out to be fabricated. (J. L, supra,
That police must take 911 calls “ ‘seriously and respond with dispatch’ ” (maj. opn., ante, at p. 467, quoting U.S. v. Terry-Crespo, supra,
Finally, the majority’s conclusion that the anonymous tip here was sufficiently reliable because the tipster provided “an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived” (maj. opn., ante, at p. 468), fails to apprehend that it was exactly this type of confirmation of the
The majority suggests this case falls outside J. L’s insistence that police determine whether an anonymous call bears sufficient indicia of reliability because the crime reported involved a “grave and immediate risk not only to the caller but also to anyone nearby.” (Maj. opn., ante, at p. 465.) To be sure, the J. L. court left open the possibility that an anonymous tip warning of some catastrophic harm, such as a person carrying a bomb, could “justify a search even without a showing of [the tip’s] reliability.” (J. L., supra, 529 U.S. at pp. 273-274.) But the anonymous tip here, reporting defendant had threatened the caller with a firearm (but apparently was no longer doing so) did not pose a danger of similar magnitude to the offense the high court speculated about in J. L. As I explained in my dissenting opinion in Wells, supra,
Also troubling is what the majority fails to include in its analysis, factors on which the Wells majority placed considerable importance. First, in concluding police in Wells had reasonable cause to stop the defendant’s vehicle based solely on an anonymous tip, the Wells majority explained that “the level of intrusion of personal privacy and inconvenience involved in a brief vehicle stop is considerably less than the ‘embarrassing police search’ on a public street condemned by J. L., supra,
Second, the Wells majority justified the detention there by explaining that “ ‘in light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.’ ” (Wells, supra,
By abandoning these twin rationales, central to the majority’s reasoning in Wells but apparently of no use today, the majority sows substantial doctrinal doubt where additional clarity would be more appropriate. After today’s decision, for example, one might wonder: Is the “level of intrusion of personal privacy and inconvenience” (Wells, supra,
I would instead pare down the analysis to its essential core and hold—as J. L, supra, 529 U.S. 266, instructs—that an anonymous tip to police cannot justify a suspect’s detention or search unless it is corroborated as to some aspect of the criminal activity reported, or other facts exist demonstrating the reliability of the tip and/or the veracity of the tipster. Here, unlike in Wells, the tip itself provided some evidence the tipster was speaking from personal knowledge, having himself been the victim of the reported potentially violent crime that occurred only moments before. Under such circumstances, the tip, though essentially anonymous, bore sufficient indicia of reliability to provide police with reasonable cause to detain and search defendant. Accordingly, I concur in the result the majority reaches today, although, as explained above, I do not join in the whole of its reasoning.
Moreno, J., concurred.
The majority relies on U.S. v. Terry-Crespo (9th Cir. 2004)
Moreover, the majority’s analysis distinguishing 911 calls from other calls to police potentially reduces the holding of J. L. almost to the vanishing point, for most calls to police are 911 calls.
Unlike Justice Kennard, in her concurring opinion, I put no weight on the “tone” of the caller’s voice or the “urgency” he conveyed. (Conc. opn. of Kennard, J., ante, at p. 473.) First, the relative degree of urgency one might glean from the caller’s vocal inflection was not litigated below, rendering reliance on that factor suspect; second, nothing in the record suggests the dispatcher or the police officer effecting the detention actually relied on the caller’s vocal tone in assessing his reliability; and third, to recognize an agitated or urgent vocal tone as a factor demonstrating reliability of an anonymous tip would potentially swallow the rule, for one can imagine that virtually all callers to police emergency numbers betray some agitation and emotion in their voices.