Lead Opinion
In the trial court, defendant Oscar Humberto Perrusquia filed a motion to suppress under Penal Code section 1538.5.
I
.FACTS
On January 13, 2006, Anaheim Police Officer Ryan Tisdale was on patrol near the comer of Harbor and La Palma. A 7-Eleven convenience store was located near that intersection, and Tisdale intended to stop there for a cup of coffee. Earlier that day at roll call, Tisdale and fellow officers had been briefed by detectives about a series of six armed robberies at 7-Eleven stores in Anaheim. The description provided was of a Black or Hispanic male in his late 20’s. The detectives wanted the patrol officers to do patrol checks and keep their eyes on 7-Eleven stores because they had been hit so often.
Further, based on his prior experience, Tisdale knew the area around that particular 7-Eleven was a high-crime area. During his patrols, he had had contacts in the area relating to assault with a deadly weapon and drug complaints. He also knew that numerous gangs were tied to the area, and he had frequently worked with gang detectives in the area during his patrol hours.
Tisdale entered the 7-Eleven’s parking lot at approximately 11:26 p.m. He noticed defendant’s car as he entered the lot. It was parked facing La Palma, next to the exit. The car caught his attention because there were other spots available closer to the store’s entrance, and someone was inside with the engine idling.
Tisdale stood behind the car and watched defendant. He could see defendant crouched low in the driver’s seat. Defendant was leaning against the glass and Tisdale felt it looked suspicious. After 45 seconds or so, a second officer pulled into the lot and joined Tisdale, and they continued observing defendant. Defendant had not moved during this time. The two officers then began approaching, and as they reached the rear of defendant’s car, Tisdale heard what he described as “kind of like a fumbling.” He then heard what he believed to be something dropping to the floor of the car with a “thud.”
Tisdale saw defendant look at him in the car’s side mirror, and at that point defendant turned the car’s engine off. Defendant exited the vehicle, and “aggressively, quickly” tried to pass Tisdale. Defendant was wearing baggy jeans and an untucked, long-sleeved baggy shirt. Tisdale asked defendant what was going on, and defendant
At that point, the other officer, who had been standing back while Tisdale was talking to defendant, intervened and both officers took hold of defendant’s arms and wrists. After Tisdale took defendant’s right wrist, he touched defendant’s waistband and immediately felt the handle of a gun. Tisdale pulled out the gun, a loaded nine-millimeter automatic, and dropped it on the ground. He then moved defendant toward a grassy area in front of defendant’s car and he and the other officer .took defendant to the ground.
After defendant was handcuffed, Tisdale asked if he had any other weapons on him, and defendant answered yes. - Defendant said he had an additional revolver in his waistband, and Tisdale retrieved a loaded .22-caliber gun. Tisdale then conducted an additional search for other weapons and called gang detectives. A subsequent search through defendant’s pockets revealed a small bag containing a substance that appeared to be methamphetamine and a glass smoking pipe.
Defendant was charged with two counts of having a concealed firearm in a vehicle (§ 12025), one count of possessing a controlled substance with a firearm (Health & Saf. Code, § 11370.1), one count of possessing a controlled substance (Health & Saf. Code, § 11377) and two counts of carrying a loaded, unregistered firearm in public (§ 12031). Defendant moved to suppress the evidence pursuant to section 1538.5.
At the conclusion of the hearing, the magistrate granted the motion. The court stated: “[T]he test being were the officers . . . able to articulate specific facts from which an ordinary person would believe that a crime has been or is about to be committed, that basically this situation here would lead an ordinary officer under the circumstances to a common sense belief that this is something he should look at and investigate and should the circumstances have worked out different where the defendant didn’t at some time exercise his right not to talk to the officers, the argument would then be that the show of authority was insufficient to have caused his submission and this is consensual. [][] On these circumstances here, he did exercise his option at the time to not consensually remain and at the time, while the officers may have had a hunch that something was going on and justifiably wanted to talk to him about it further, they cannot state an articulable set of facts which would lead a reasonable person to believe that a crime was being committed or was about to be committed so therefore the laying on of hands at that time was without reasonable cause and so the motion was granted.” Given that the motion was granted, the district attorney was unable to proceed, and the court dismissed the case.
II
DISCUSSION
The district attorney now appeals from the trial court’s decision to
“[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978)
An investigative stop, such as the one conducted by Tisdale, is valid if “the circumstances known or apparent to the officer . . . 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.” (In re Tony C., supra,
The United States Supreme Court, however, has specifically rejected a “divide-and-conquer” analysis in which individual facts are considered in isolation. (United States v. Arvizu (2002)
Reasonable suspicion, both sides agree, cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. (Illinois v. Wardlow (2000)
Many of the facts relied upon here are unrelated to defendant. There had been a recent string of robberies at 7-Eleven stores in Anaheim. The area in which this particular 7-Eleven was located was known as a high-crime area and for gang activity.
We consider the facts that are specific to defendant. When Tisdale arrived, he noticed defendant’s car because it was parked with the engine idling near a street exit and away from the store’s entrance, despite the fact that spaces closer to the store were available. As the officers approached defendant’s car, Tisdale heard what he described as “kind of like a fumbling” and a “thud” that might have been something dropping to the floor of the car.. When defendant noticed Tisdale and the other officer, he apparently tried to avoid contact with them, abruptly turning off the engine, and exiting the car. Tisdale asked defendant what was going on, and defendant stated that he was going to the store. Tisdale asked defendant to “hang on a second.”
Importantly, the district attorney conceded at oral argument that defendant was detained from the moment Tisdale said “hang on a second.” We might not have reached this conclusion, were we determining the issue independently, but we accept the district attorney’s concession. Thus, we look only to the facts prior to that point to determine whether the detention was reasonable.
Unlike several of the cases cited by the district attorney, here, the hour was not particularly late, and the store was, apparently, open. (Cf. People v. Holloway (1985)
The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention. As the trial court noted at the hearing’s conclusion: “[T]his is why police work is difficult, complex and challenging[,] because it’s difficult from a moral or practical standpoint to criticize the officer’s actions.” We agree, yet at the same time we also agree with the trial court that the facts did not meet the legal standard for a detention. The officer must have “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.” (In re Tony C., supra,
in
DISPOSITION
The judgment of dismissal is affirmed.
O’Leary, J., concurred.
Notes
Subsequent statutory references are to the Penal Code.
Concurrence Opinion
I join in the majority opinion because I agree with both its reasoning and its result. Our dissenting colleague places some reliance on People v. Souza (1994)
I agree with our dissenting colleague regarding the general criteria under which we evaluate the propriety of a detention, but I find his reliance on Souza to be misplaced. In Souza an officer was on patrol at approximately 3:00 a.m., in a “high-crime” residential area when he observed two people standing in almost complete darkness near a parked car. He described seeing one of the two individuals leaning toward the car as if talking to someone inside. When the officer directed his patrol car’s spotlight into the car’s interior, the two people in the front seat immediately bent down toward the floorboard, and the individual standing outside the car took off running. The Supreme Court concluded that from these circumstances, the area’s reputation for criminal activity, the presence of two people near a
Here, observations are made at 11:30 p.m., in the parking lot of an open convenience store.
Courts have long recognized that police officers enjoy First Amendment rights just like the rest of us. And, there is nothing in the Constitution that prevents a police officer from attempting to engage an individual in conversation. (United States v. Mendenhall (1980)
Our dissenting colleague relies on the fact that Perrusquia is “a male Hispanic ... in his late 20’s.” (Dis. opn., post, at p. 238.) The record does not reflect that the officer made observations at any time regarding Perrusquia’s ethnicity or age.
Dissenting Opinion
This is the compact we make with our police; They agree to take on the darkest and dirtiest, most difficult job in our society, in return for which we agree to judge them not by their results, but by the reasonableness of their actions. We do this in recognition of the fact their decisions must often be made with very little reflection, on the basis of rapidly changing circumstances,' rife with danger to them and to us.'(See Graham v. Connor (1989)
So it is that we evaluate the propriety of their searches and seizures not by what they turn up, but by whether it was probable at the search’s inception that it would develop evidence of a crime. (People v. Hill (1974)
This last is vitally important. Detention is almost certainly the most powerful tool we have provided the police. I am convinced it saves more lives and prevents more crime every day than search warrants, computers, handguns and helicopters combined. I am convinced its immense value is the only reason we give up that part of our precious freedom that is infringed by the admittedly unwelcome and unsettling experience of being confronted and questioned by an armed police officer, backed by the immense power of the state or federal government. I am convinced we must guard the liberties diminished by detention as zealously as we protect all the rest of our Fourth and Fifth Amendment rights. But I am also convinced all these considerations support the detention in this case, so I must respectfully dissent from my colleagues’ decision to suppress the resultant evidence.
Detection and prevention of criminal activity is the cardinal function of our police. It is also the most difficult, dangerous, and constitutionally problematic. We are constantly called upon to balance the immeasurable value of effective law enforcement—to the individual citizen and to our society in general—against the precious individual rights that are the raison d’etre of effective law enforcement. I think that balance here should have been struck in favor of law enforcement; I see no threat to individual rights in this detention, and I would deny defendant’s motion to suppress and order the trial court to reinstate the charges against him.
The sole issue presented is the lawfulness of defendant’s detention. “A detention is reasonable under the Fourth Amendment when the detaining officer can 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.” (People v. Souza, supra, 9 Cal.4th at p. 231.) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1988)
The inquiry is factually driven, of course, and we have learned over time that “[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,
Moreover, the detention occurred late in the evening, about 11:30 p.m. This is another circumstance that lends support to the officer’s actions. (See People v. Souza, supra, 9 Cal.4th at p. 241.) My concurring colleague devotes most of her opinion to distinguishing this case from Souza,
The detention did not just occur in a high-crime area late at night, however. Officer Tisdale had specific information that there had been a rash of recent armed robberies at 7-Eleven stores in Anaheim. This logically fueled the officer’s suspicions and added to the quantum of evidence in support of the detention. (See U.S. v. Abokhai (8th Cir. 1987)
So did the fact that defendant met the description of the person involved in the prior robberies. The 7-Eleven robber was described as being a male Hispanic or African-American in his late 20’s with a shaved head. According to respondent’s brief, “Defendant is a 32 year-old Hispanic male with a ‘buzz cut.’ ”
Other factors were also at play. When Officer Tisdale saw defendant’s car, it was parked—with its motor running—in an odd location. Rather than taking one of
• Adding to Officer Tisdale’s suspicions, defendant was “crouched low in the driver’s, seat” and “leaning against the glass.” The officer watched him for some time and he made no move to go into the store, or leave, or turn off his engine. But as soon as the officer approached him, he fumbled about in his car and dropped something on the floor. Such furtive, nervous behavior, combined with the location and time of the encounter, and the cluster of 7-Eleven robberies would have put any reasonable person on heightened alert that criminal activity might be afoot. (See 4 LaFave, Search and Seizure (4th ed. 2004) § 9.5(f), p. 516, citing U.S. v. Watson (5th Cir. 1992)
But that was not the end of it. When defendant spotted Officer Tisdale in his rearview mirror, he suddenly exited his vehicle and “quickly” and “aggressively” tried to avoid him. That was his right, of course, but it is an appropriate consideration in determining the legality of Officer Tisdale’s actions. Such evasive conduct, although less incriminating than headlong flight (see, e.g., Illinois v. Wardlow, supra,
My concurring colleague is concerned that upholding this detention would send a confusing signal about consensual encounters. She asks, “[H]ow does one exercise one’s right to decline a conversation with a police officer without assisting the officer in establishing reasonable suspicion?” (Cone, opn., ante, at p. 236.) This is an important concern. It is one I share. We cannot very well tell people they have a right not to cooperate, with the police and then allow them to be detained if they exercise that “right.”
But, of course, that is a false portrayal of the options here. No individual is obliged to talk to the police and if he chooses not to, his choice is insufficient to justify his detention. If his reluctance to cooperate with the police is the only thing “suspicious” about his conduct, he cannot be stopped. (See Florida v. Royer (1983)
And when I consider all those factors, I conclude he can be legally detained because of them. He cannot be arrested, because that would require probable cause. But he can be detained for the short time it takes to: find out if he has an innocent explanation of these facts or if hé has—as in this case— two handguns and a very dubious plan for the evening.
Resolving the ambiguity my colleagues see in these circumstances is the whole point of detentions. And while detentions sometimes inconvenience innocent citizens, we allow them for the safety of the community and its police. I think the Fourth Amendment countenances that result. I think Terry v. Ohio (1968)
Appellant’s petition for review by the Supreme Court was denied July 25, 2007, S153207. Werdegar, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.
Souza is an instructive case, but I am not suggesting this detention should be upheld because it is the same as Souza’s. It is not. No two cases are identical. And this detention must stand or fall not upon its resemblance to Souza but on its reasonableness.
My concurring colleague questions my inclusion of this fact because “[t]he record does not reflect that the officer made observations at any time regarding Pémisquia’s ethnicity or age.” (Conc. opn., ante, at p. 235, fn. 1.) She is right that while the officer testified to Perrusquia’s short hair, he offered no opinion that he “looked Hispanic.” The record does, however, include Perrusquia’s trial and appellate attorneys’ concessions that he was a young Hispanic male as part of the argument police should not be detaining every male African-American or Hispanic who frequents a 7-Eleven store—an irrebuttable position but one not strictly applicable to the facts of this case. While I would have preferred a finding on the record of Perrusquia’s Hispanic heritage, I think his attorneys’ candid concession obviates that. At any rate, I hardly consider this factor dispositive. It was merely one of many that called for a detention. The detention was not based upon race or ethnicity and does not require it to comply with the Fourth Amendment.