Lead Opinion
May a police officer, consistent with the Constitution, stop a vehicle because he suspects the driver is an associate of another individual who is being investigated for a parking violation in a “high crime area”?
I.
On April 14, 1982, Lake County Sheriff’s Deputy Steven Cozart was on duty as a uniformed officer in a marked patrol car. At approximately 2 p.m., Cozart saw a blue Ford Cortina illegally parked and blocking access to a dirt side road. A young man was sitting on the hood of the car. The car had red bandanas covering the taillights.
Cozart stopped and approached the man, who identified himself as Thomas Landrum. Cozart asked Landrum to move the car, and he agreed to do so. When questioned, Landrum stated that he was waiting for “Bub” or “Bubby,” who had driven into a nearby housing development to collect money owed him by one of the residents. Landrum had been asked by Bub to stay behind because Bub’s friend did not like strangers to know where he lived. Landrum did not know Bub’s last name or the name оf the Bub’s friend, but described Bub’s vehicle as a yellow Datsun pickup. Cozart testified that Landrum’s hands were shaking and that he looked at the ground as he was talking.
A warrant check was run on Landrum and his car, with negative results. As Cozart was instructing Landrum to move his car, a yellow Toyota pickup containing two persons approached at a normal rate of speed. As the truck drove past, both occupants looked toward Cozart and then looked away. The truck accelerated and continued down the street. Cozart noted the license plate number and asked Landrum if that was his friend. Landrum stuttered and then replied that it was not. He told the officer that Bub had long hair and a beard and that his vehicle was a Datsun and had a metal rack on the back. The driver of the pickup was clean shaven, and the vehicle had no such rack.
Cozart testified that he had no intention of arresting Landrum or giving him a citation for illegal parking or a possible equipment violation. Lаndrum was neither cited nor detained further. Instead, Cozart got into his patrol car, turned around, and pursued the pickup. En route, he radioed in a warrant check on the pickup’s license plate number. The warrant check came back “clear” and revealed that the owner of the truck was an Allan Loewen who lived in Clear Lake. Failing to find the truck, Cozart radioed Officers Carl Stein and Wesley Frey to come to the area.
Officers Stein and Frey were in plainclothes and travelling in an unmarked police car. They spotted the yellow truck and followed it for approximately seven miles. No vehicular violations were noted during this time. Finally, the officers stopped the pickup, and requested identification from the driver and his passenger. A subsequent consent search turned up a sawed-off shotgun and two stolen chain saws.
Appellant, the driver of the truck, was charged with receiving stolen property (Pen. Code, § 496
II.
Appellant contends that the officers had insufficient justification to stop his vehicle and search it.
The law is well-established that “in order to justify an investigative stop or detention the circumstancеs known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer) [1970] 3 Cal.3d [807,] 827 [
An appellate court’s review of a motion to suppress evidence is also governed by well-settled prinсiples. The trial court’s factual findings relating to the challenged search or seizure, “whether express or implied, must be upheld if they are supported by substantial evidence.” (People v. Lawler (1973)
Here, the facts are undisputed. Deputy Cozart’s decision to detain the truck via Officers Stein and Frey was based upon his “feeling” that its
At the hearing, Cozart offered four reasons in support of his decision to detain the truck: (1) an increase in the incidence of thefts in the area, (2) Landrum’s nervous behavior, including the explanation for his presence and his denial that “Bub” was in the passing truck
Reliance on the “high rate of crime” in the area must be rejected. An “officer’s assertion that the location lay in a ‘high crime’ area does not elevate . . . facts into a reasonable suspicion of criminality. The ‘high crime area’ factor is not an ‘activity’ of an individual. Many citizens of this state are forced to live in areas that have ‘high crime’ rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]” (People v. Bower (1979)
In addition, the evidence of “high crime” which Cozart testified to underscored the inappropriateness of relying on that factor in this case. Cozart testified that 25 to 30 thefts—a “significant” increase—had been reported in the area during the few months preceding appellant’s detention. Many incidents involved tools stolen out of pickup trucks. However, none of the thefts Cozart had investigated involved a blue Ford or a yellow pickup. Nor was a Thomas Landrum or “Bub” associated with any of the reported thefts. Also, none of the incidents involved an individual blocking access to a public roadway. In short, as is frequently the problem when a “high crime area” factor is relied upon, Cozart offered no evidence as to “how the allegedly suspicious activity [was] related to the type of activity upon
Moreover, Landrum’s behavior did not provide a reasonable basis for suspecting the occupants of the passing truck of criminal activity. Consider Landrum’s explanation for his presence—that he had been asked to wait alongside the road because his friend, “Bub,” had gone to visit a friend who did not like strangers to know where he lived. That explanation led Cozart to believe that “maybe [Landrum] was just lying to [him],” and was “just suspicious enough to try and find out what [Landrum’s] friends were doing.” Yet the explanation was not patently inconsistent, false, or inherently implausible. As such, it did not furnish a reasonable basis for suspecting criminal activity. (People v. Sandoval (1966)
Cozart’s observation that Landrum stammered and glanced at the ground while conversing with him did not give Cozart cause to stop another’s vehicle. Nervousness in the presence of a police officer does not furnish a reasonable basis for a detention, especially where, as here, it “could understandably result from . . . police questioning because of a ‘traffic violation.’” (People v. Lawler, supra, 9 Cal.3d at p. 162, fn. omitted.) As this court has observed, “[t]o hold that police officers should in the proper discharge of their duties detain and question ... all those who act nervous at the approach of officers would for practical purposes involve an abrogation of the rule requiring substantial circumstances to justify the detention and questioning of persons on the street.” (People v. Moore (1968)
Nor did Landrum’s statement that “Bub” was not the driver of the passing truck furnish a basis for detaining it. As this court has stated in a different context, “ ‘[disbelief [of a witness’ testimony] does not create affirmative evidence to the contrary of that which is discarded.’” (People v. Jimenez (1978)
Moreover, even assuming the officer reasonably concluded that Landrum may have been lying about who was driving the truck, Cozart had no reasonable grounds for suspecting that its occupants were engaging in criminal activity. All that could be deduced was thаt the occupants were somehow associated with Landrum, who was not reasonably suspected of anything beyond a vehicle violation. Without some evidence that the pair or the trio were involved in criminal activity, the fact that the truck might have been the vehicle Landrum had described to the officer did not add anything of substance to the Tony C. equation.
Another factor Deputy Cozart relied on to justify the detention was that the occupants of the truck looked away when they aрproached. Cozart testified that their failure to continue looking at him was suspicious because “[m]ost people have a habit of looking at a patrol car when they pass it.” However, he admitted that neither man attempted to hide his face or otherwise conceal his identity as the truck passed.
This court has held that “ ‘[t]here are many reasons other than guilt . . . why an occupant of an apartment may not wish himself or others present exposed to the immеdiate view of a stranger, even if the stranger is a police officer. ’ [Citation.] Even where an individual is out of doors, his ‘apparent concern with privacy does not imply guilt.’ [Citations.]” (People v. Bower, supra,
This court has been wary of permitting a police officer to justify a detention by characterizing gestures as criminal. “The difficulty is that from the
The admonition in Kiefer is particularly apt in this case. Cozart testified that as the truck passеd, the driver looked over at the passenger, who had just turned to look out of the passenger window. Such movements are without consequence, especially here, where Cozart admitted that neither occupant ducked, hid his face from the officer’s view, or made any other “suspicious” movements. There was no evidence that anything “was being concealed, disposed of, exchanged, or even carried.” (People v. Bower, supra, 24 Cal.3d at p. 647.) Cozart’s belief that the occupants wеre attempting to conceal their identity “was more an ‘inchoate and unparticularized suspicion or “hunch’ ”... than a fair inference in the light of his experience . . . .” (Reid v. Georgia, supra,
Another factor Cozart testified to was his belief that the truck accelerated as it passed. He based this on the observation that the truck “appeared to be going away from [him] faster than it came towards [him].” He was unable to offer an еstimate of any increase in speed, but acknowledged that the truck approached at a rate of 25 to 30 miles per hour, the speed at which most people travel that road.
As People v. Bower, supra, 24 Cal.3d 638 makes clear, these facts did not add much. In Bower, four or five individuals were walking through a housing project in a “high crime” neighborhood. When they noticed a police car, they stopped, turned around, went back toward an elevator, and “ ‘formed like a huddle of some sort’ . . . .” (Id., at p. 642.) One individual “started moving hurriedly away from the group while looking back over his shoulder toward the police car.” (Ibid.) When the officers got out of their car and started walking toward the individuals remaining in the group, the group “‘fragmented.’” (Id., at pp. 642-643.) One of the individuals
This court found the detention to be unlawful. The prosecution’s argument that the stop was justified, inter alia, by the group’s “suspicious behavior” was specifically rejected. (
If the behavior of the group in Bower did not warrant a detention, then clearly the behavior of the occupants of the truck here was not a basis on which to justify the stop ordered by Cozart. The occupants of the truck were under no duty to stop. They could legally decide to affirmatively avoid the officer out of a desire to remain uninvolved in Cozart’s activities.
Further, neither of the occupants of the truck engaged in “furtive” behavior. As Cozart testified, neither man turned around and looked back in the officer’s direction as the truck continued down the road. The pickup did not swerve or drive in a reckless manner at any point.
III.
In determining the reasonableness of a detention, this court acknowledges thаt “the totality of the circumstances—the whole picture—must
In making that determination, this court takes into account that the principal function of an officer’s investigation is to resolve often ambiguous-appearing circumstances and determine “whether the activity is in fact legal or illegal—to ‘enable thе police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’” (In re Tony C., supra,
In this case, Officer Cozart’s good faith suspicion that the occupants of the truck had engaged in or were about to engage in criminal activity was not reasonable. None of the four factors Cozart testified to satisfied the Tony C. test. Nor did they “mysteriously become imbued with an aura of guilt merely by viewing them in their ‘totality. ’ ” (People v. Gale, supra, 9 Cal.3d at p. 806 [dis. opn. of Mosk, J.].) To borrow from Justice Mosk, four “times zero, in [this court’s] arithmetic, still equals zero.” (Ibid.)
Since the detention of the truck was illegal, the items seized pursuant to the subsequent search should have been suppressed.
The judgment is reversed.
Mosk, J., Kaus, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
Notes
Before stopping, Cozart passed Landrum’s car going the other way on the highway and saw it turn onto another road. Cozart drove about two miles further but failed to see either Landrum’s vehicle or the yellow truck. He thereafter abandoned the search for either vehicle.
A11 statutory references are to the Penal Code unless otherwise indicated.
At oral argument, respondent argued that a consensual encounter rather than a detention had occurred. Ignoring for the moment the procedural irregularity in advancing this contention for the first time on appeal (People v. Smith (1983)
After following appellant’s truck for seven miles without incident, Officers Frey and Stein activated the red spotlight on their unmarked police car, at which time appellant crossed the highway, stopped, and parked the truck in front of a local cafe. When appellant got out, he walked in Frey’s direction with identification in hand, eventually meeting him at the rear of the truck. These actions would have unequivocally indicated to a reasonable person that he was neither free to continue driving along the highway nor to enter the cafe. (See Wilson v. Superior Court (1983)
Cozart also testified that his suspicions had been aroused because Landrum lived outside the county and Cozart had never seen him before. Cozart later admitted that that these facts were not inherently suspicious.
Ironically, Officer Cozart’s formula for appropriate citizen behavior was precisely what officers in another case found suspicious. (See People v. Williams (1971)
The Court of Appeal decision in In re Eduardo G. (1980)
In view of the conclusion that appellant’s detention was unconstitutional, it is unnecessary to reach the question of whether the consent search exceeded the purpose of the stop.
Dissenting Opinion
I respectfully dissent.
In my view the record contains ample evidencе to sustain the implied findings of both the magistrate and the superior court that Officer Cozart had reasonable suspicion to detain defendant.
The pertinent facts and legal principles were correctly described in Justice Elkington’s opinion for the Court of Appeal in this case, as follows:
*130 “Here the illegally parked automobile first observed by the police officers had its taillights covered by cloth, and its occupant explained that he was waiting for someone whosе full name he did not know, driving a yellow pick-up truck of Japanese manufacture. When such a vehicle drove by, upon seeing the police officers the occupants looked the other way and speeded up the car. And as stated by [defendant] Loewen’s briefs: the police officers’ ‘suspicions were aroused by: (1) Landrum’s nervous behavior; (2) the similarity between the yellow Toyota and Bub’s vehicle, as described by Landrum; (3) the behavior of the men in the Toyota as it passed by on the road; and (4) the incidence of thefts in the Anderson Springs-Middletown area.’
“We are unable to conclude . . . that both the magistrate and the superior court acted unreasonably in finding the pick-up automobile’s detention to be based upon more than ‘mere curiosity, rumor, or hunch’ (In re Tony C. [1978]21 Cal.3d 888 , 894 [148 Cal.Rptr. 366 ,582 P.2d 957 ]), and in recognizing that ‘experienced police officers naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult tasks of protecting the security and safety of law-abiding citizens.’ (People v. Gale [1973]9 Cal.3d 788 , 795 [108 Cal.Rptr. 852 ,511 P.2d 1204 ].)”
I would affirm the judgment.