Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County, No. TA092078 John J. Cheroske, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Attorney General for the State of California, Edmund G. Brown, Jr., Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General for Defendant and Respondent.
PERLUSS, P. J.
Following the denial of a motion to suppress evidence, Charlie Farley pleaded no contest to one count of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). On appeal Farley contends the small plastic bag containing cocaine and the “rock pipe” discovered in his pockets after he was stopped as part of a robbery investigation were the fruit of an illegal detention and should have been suppressed. We agree and reverse the judgment based on Farley’s no contest plea.
Pursuant to the plea agreement Farley was sentenced to the low term of 16 months in state prison. Because of his numerous prior drug convictions, Farley apparently did not satisfy the eligibility requirements for mandatory probation and drug treatment under Proposition 36.
FACTUAL BACKGROUND
The evidence at the suppression hearing held on October 10, 2007 established that on Sunday morning, August 5, 2007, at approximately 10:30 a.m., Los Angeles County Deputy Sheriff Stephen Medina detained Farley as he was walking on West Caldwell Street in Compton. Medina testified he stopped Farley because he matched the description of a suspect sought in connection with a robbery that had taken place two or three blocks away less than an hour before. The description, taken from the robbery victim by Medina himself, was of a Black male, armed with a semiautomatic handgun, who was six feet tall, 20 to 25 years old and wearing a black hooded sweatshirt and dark gray or green “Dickie” pants. When Medina stopped Farley, an African-American man, Farley was wearing a black short-sleeved T-shirt and green pants with “cargo” pockets (the brand of pants is not in the record). At the time of the detention, Farley was 42 years old. He is only 5 feet, 4 inches tall (although Medina’s report describes him as 5 feet, 7 inches tall). When Medina made contact with Farley, he was walking at a normal pace on West Caldwell Street.
Before reviewing the relevant police reports, Medina testified he saw Farley “approximately 10 minutes” after the robbery had occurred. However, as Farley’s counsel established during her cross-examination of Medina, the robbery report, written by Medina, stated the robbery had occurred at 9:45 a.m. and Medina’s report of Farley’s arrest indicated he had been detained at 10:35 a.m. -- 50 minutes later. Although the contemporaneous written reports presumably are more accurate than Medina’s unrefreshed recollection of the events two months later, as does the Attorney General, we simply describe the time between the two events as “less than an hour.”
Deputy Medina saw Farley while driving his patrol car. Medina got out of his vehicle, detained Farley and asked if he “had any weapons or anything illegal on him.” Farley responded he had a rock pipe. Medina then searched Farley and found in his right front pants pocket a glass pipe, burned at one end, which Medina recognized as the type commonly used to ingest cocaine, and in his front left pants pocket a small plastic bag containing an off-white, rock-like substance that later proved to be cocaine.
Deputy Medina acknowledged -- and the Attorney General does not contest -- that Farley had been detained before he was asked if he had anything illegal on him: “He was detained. He was not free to go . . . pending the robbery investigation.”
The trial court denied the motion to suppress, explaining, “It’s the unusual combination of green pants and black shirt that’s key information to me. I’m going to deny the motion. I think there was enough probable cause, even given the discrepancies, to at least stop him and ask him if he had a gun. So the motion is denied.”
DISCUSSION
1. Standard of Review
In reviewing the denial of a motion to suppress, 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 Farley’s Motion to Suppress
a. The law governing detentions
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.) 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.)
Although a police officer may approach an individual in a public place and ask questions if the person is willing to listen, the officer may detain the person only if the officer has a reasonable, articulable suspicion the detainee has been, currently is or is 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]; see In re Tony C. (1978) 21 Cal.3d 888, 893.) To satisfy this requirement, the 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.” (People v. Souza, supra, 9 Cal.4th at p. 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10] [“[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause. [¶] The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” [Citation.] The Fourth Amendment requires ‘some minimum level of objective justification’ for making the stop.”].)
The officer’s suspicion must also be objectively reasonable; the facts must be such that any reasonable officer in the detaining officer’s position would suspect the same criminal activity and the same involvement by the person in question. (People v. Aldridge (1984) 35 Cal.3d 473, 478.) In evaluating whether that standard 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, 417 [101 S.Ct. 690, 66 L.Ed.2d 621].) “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.) This deference to the officer’s experience in the field must be weighed against citizens’ privacy concerns, and must not go so far as to provide “broad and unlimited discretion” to authorities to detain suspects. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 877 [95 S.Ct. 2574, 45 L.Ed.2d 607].)
b. Deputy Medina’s detention of Farley was not reasonable
It is uncontested Farley was detained by Deputy Medina when he was stopped and questioned about his possession of a weapon or other contraband. Accordingly, as the trial court recognized, the discovery of the plastic bag of cocaine and the rock pipe in Farley’s pants pockets was lawful only if the detention itself was reasonable under the Fourth Amendment. (See People v. Boyer (2006) 38 Cal.4th 412, 448 [evidence procured as a result of a Fourth Amendment violation against the defendant must be excluded unless the People establish the illegality has become so attenuated as to dissipate the taint]; see also Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [83 S.Ct. 407, 9 L.Ed.2d 441].)
In addition to arguing the items seized from his pants were the product of an illegal detention, Farley contends the second part of Deputy Medina’s question whether he “had any weapons or anything illegal on him” was not limited to the purpose of the stop and therefore violated his Fourth Amendment rights. In light of our conclusion the detention itself was improper, we need not address this issue.
A vague or general description, standing alone, does not provide reasonable grounds to detain all individuals who fall within that description. (See In re Tony C., supra, 21 Cal.3d at p. 898 [description of “three Black males” in day-old burglary report insufficient to justify detention of two African-American teenagers in vicinity of crimes]; accord, In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382.) Nonetheless, the investigative detention of an individual two to three blocks from the location of a violent crime committed within the preceding hour, whose race and gender (African-American male) match the suspect’s and whose clothing is also similar to that of the suspect’s (black top and dark gray or green pants) appears objectively reasonably and, without more, would not impermissibly invest law enforcement personnel with “broad and unlimited discretion.” (See United States v. Brignoni-Ponce, supra, 422 U.S. at p. 877; but see People v. Collins (1970) 1 Cal.3d 658, 660-661 [expressing “grave doubts as to the lawfulness of defendant’s detention”; “[a] description as general as ‘A male Negroe [sic], six foot, 160 pounds,’ fails to distinguish defendant from a substantial portion of the population of south-central Los Angeles”].) But when we examine, as we must, the “totality of circumstances” surrounding Deputy Medina’s decision to detain Farley for questioning, we simply cannot conclude that any reasonable officer in Medina’s position would likewise suspect Farley had been involved in the recent robbery. (See People v. Aldridge, supra, 35 Cal.3d at p. 478.)
Although, as it turned out, Farley was not the perpetrator of the robbery being investigated by Deputy Medina -- he was arrested and pleaded no contest to an entirely unrelated drug possession charge -- we do not question Medina’s good faith in stopping him as part of the investigation. The issue is not Medina’s subjective good faith but whether he had an objectively reasonable basis for his belief Farley may have been involved in the crime. (See Graham v. Connor (1989) 490 U.S. 386, 397 [109 S.Ct. 1865, 104 L.Ed.2d 443] [The question “is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [Citations.] An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable [action]; nor will an officer’s good intentions make an objectively unreasonable [act] constitutional.”].)
Significantly, the crime victim identified not just an African-American man, but a young (20-25 years old), tall (six foot) African-American assailant. As discussed, Farley is short and middle-aged. (Cf. People v. Fields (1984) 159 Cal.App.3d 555, 564 [upholding detention as reasonable because defendant was seen in general vicinity of the crime and “generally matched the description of the suspect, being of the same race ([B]lack), sex (male) and height (six feet), and of the same general age group (young adult) and build (on the thin side)”].) Moreover, even conceding that Farley’s green pants with cargo pockets were similar in appearance to the dark gray or green “Dickie” pants described by the robbery victim, when stopped, Farley was wearing a black T-shirt, not a black, hooded sweatshirt. Finally, although Farley was detained within the general vicinity of the robbery within an hour after it occurred, Deputy Medina did not indicate Farley was the only person (or even the only African-American male) in the area, which has a significant African-American population. (Cf. People v. Conway (1994) 25 Cal.App.4th 385, 390 [officer reasonably stopped only car in area after hearing police report of burglary in process]; People v. Anthony (1970) 7 Cal.App.3d 751, 761 [officer reasonably detained vehicle traveling away from scene of the crime in part because it was the only one on the streets at the time].) Nor did Medina suggest there was anything about Farley’s demeanor that contributed to his suspicion he was involved in the robbery. To the contrary, Farley was simply walking on the street at a normal pace late on a Sunday morning; he was not running, looking over his shoulder or engaging in other evasive or furtive conduct. (See generally In re Tony C., supra, 21 Cal.3d at p. 897 [nothing inherently suspicious about two African-American teens walking in residential neighborhood at noon].)
To be sure, a description need not be an exact match to justify detaining a suspect for questioning. “‘It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties.’” (People v. Huff (1978) 83 Cal.App.3d 549, 558; see also In re Carlos M., supra, 220 Cal.App.3d at pp. 380-381.) Moreover, the Attorney General properly observes that, regardless of how old Farley actually is, we have no indication from the trial court of how old he appears to be. But there is no similar benign explanation for the significant (eight inch) height difference between Farley and the six-foot-tall robber described by the victim. And while the trial court found most significant the match between the green pants worn by both Farley and the robber, as well as “the unusual combination of green pants and black shirt,” the robber was described as wearing a hooded sweatshirt, not a T-shirt, and the victim’s description of dark gray or green “Dickie” pants matches Farley’s green cargo pants only in the most general way. (It was the trial court, not Deputy Medina, who described as “unusual,” without further explanation, the combination of green pants and black shirt; accordingly, we cannot rely upon the deputy’s specialized training and experience to give this point of ostensible similarity any heightened significance.)
The Attorney General’s reliance on In re Carlos M., supra, 220 Cal.App.3d 372 to support the lawfulness of Farley’s detention in this case is misplaced. In Carlos M. the court held a rape suspect whose “only match with the broadcast description was that he was a Hispanic wearing a red shirt” (id. at p. 381) had not been unreasonably detained. However, the court emphasized this general description was only part of the basis for detaining the defendant; more importantly, he had been stopped while in the company of another, better-described individual suspected in the same crime: “[Where] a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant’s proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions.” (Id. at p. 382.) Farley, of course, was apparently by himself when detained; and the robber, in any event, had acted alone.
It is no doubt true, as the trial court observed and the Attorney General emphasizes, victims of crime do not always provide perfect descriptions of their assailants. (See generally People v. Rico (1979) 97 Cal.App.3d 124, 132 [noting that “[w]itnesses and ‘[crime] victims often have limited opportunity for observation, their reports may be hurried, perhaps garbled by fright or shock’”].) Here, however, in the absence of any testimony about victim confusion or uncertainty from Deputy Medina, who interviewed the robbery victim and took the crime report, or a finding by the trial court concerning the circumstances surrounding that report to which we could appropriately give deference, it stretches the point to breaking to suggest a victim would describe a man 5 feet 4 inches as six feet tall, mistake a T-shirt for a “hooded sweatshirt” or even believe a 42-year-old to be between 20 and 25, let alone simultaneously make all three mistakes.
In sum, Deputy Medina’s experience and instincts may have told him to stop Farley; however, that belief was incorrect and was not objectively reasonable under the circumstances. (See People v. Souza, supra, 9 Cal.4th at p. 231.) As our colleagues in Division One of the Fourth Appellate District explained several years ago in a similar context, “‘A hunch may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction. A hunch, however, is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.’ [Citation.] By reacting on a hunch and immediately stopping [Farley] and subjecting him to a search [Deputy Medina’s] actions, despite maintaining a good faith suspicion that [Farley had been involved in criminal activity], were unreasonable. . . . The detention was, therefore, unlawful.” (People v. Pitts (2004) 117 Cal.App.4th 881, 889.)
DISPOSITION
The judgment of conviction is reversed. On remand the trial court is directed to vacate its order denying Farley’s motion to suppress evidence and to enter a new order granting the motion. The trial court is further directed to permit Farley to withdraw his plea of no contest within 30 days after issuance of the remittitur. If Farley does not move to withdraw his plea within that time, the judgment of conviction shall be reinstated.
I concur: ZELON, J.
WOODS, J., Dissenting:
I respectfully dissent.
I do not take issue with the statement of the law contained in the majority opinion. I do, however, take issue with the application of the law to the facts of this case as presented by the majority. I interpret some of the facts extant in the record differently than the majority. The impact of my interpretation, coupled with other undisputed facts, should result in an affirmance of the decision of the trial court, in my opinion.
The critical testimony for purposes of this dissent is to be found in the testimony of Officer Medina pertaining to the time of the detention of Farley.
On direct examination by the prosecution, Officer Medina testified as follows pertaining to the time of the detention:
“Q Deputy Medina, what is your occupation and assignment?
“A Deputy sheriff, L.A. County Sheriff’s Department, Compton station, patrol.
“Q Were you working in that capacity on August 5th of this year at around 10:30 in the morning, which is a Sunday morning, I guess in the area of 1346 East Caldwell Street, City of Compton, County of L.A.?
“A Yes, I was, ma’am.
“Q And at that day time and location or around that time, did you see anybody that caught your attention?
“A Yes, I did.
“Q Why did that person catch your attention?
“A Person caught my attention because he matched the description of a robbery suspect that occurred approximately ten minutes prior to me seeing him. (Italics added.)
“Q Did you take that robbery report yourself?
“A Yes, I did.
“Q And you said this about ten minutes later that you saw the suspect? (Italics added.)
“A Yes.”
On cross-examination by the defense, Officer Medina testified as follows as to the time of the detention:
“Q Now, the robbery report was written by yourself; correct?
“A Yes.
“Q And the robbery occurred at 9:45 a.m.?
“A Yes, ma’am.
“. . . .
“Q And that indicates the date and time of occurrence was 10:35 a.m.; is that correct?
“A That’s what’s listed on the face page of the report, correct.”
For reasons not apparent from the record on appeal the aforementioned testimony of Officer Medina was the subject of an apparent concession by appellate counsel that the detention occurred, as described and depicted in footnote 2 of the majority opinion, as within the timeframe of “less than an hour” between the two events. Curiously, the attorney general accepts and concedes this time differential without arguing for an alternative interpretation of Officer Medina’s testimony as presented hereafter in this dissent.
I opine that the deputy attorney general should have made a stronger argument for the detention having occurred ten minutes after the robbery, rather than settle for a compromise that the detention could have occurred any time within the span of an hour following the incident. I explain.
Initially, I observe that the response of Office Medina to the last question of defense counsel is not completely responsive. What is “listed on the face page of the report” is not necessarily what is contained in the report itself, which considered in its entirety, might very well definitely reveal that the detention occurred ten minutes after the attempted robbery.
Secondly, the robbery report is not part of the record on appeal. It is the burden of appellant to take steps to insure the completeness of the record on appeal in order that the appellate court can make a definitive and reasoned decision as to the merits of the appeal. Appellate counsel has not done so in this instance. In my opinion, an alert deputy attorney general would have assisted the court by making a motion to augment the record on appeal to include Officer Medina’s complete report so that the appellate court could be fully apprised on the issue of the actual time of the detention of Farley.
Third, I detect that Officer Medina’s last response is ambiguous, laying aside the issue of whether it is nonresponsive. What did defense counsel mean by the use of the term occurrence in her last question? I believe there are two interpretations of the word. It could mean that the word referred to the actual time of Farley’s detention. An alternative and equally valid interpretation is that Medina was referring to the time that he filled out his report of the incident and not to the time of the actual detention. This ambiguity could have been resolved had defense counsel questioned Medina further with follow up cross-examination, but the record is devoid of such follow up cross-examination.
In my view a reasonable inference from this record is that the occurrence was the actual time when Medina filled out his report and the time of the detention was ten minutes after the robbery “went down,” to use a vernacular phrase.
In conclusion, I would find probable cause for the detention if the ten minute factor is added to the matrix of the information that Officer Medina concededly was possessed, namely, Farley was walking in close proximity to the place where the robbery occurred and was wearing a black shirt and green pants color combination, according to the description eventually provided to him by the victim.
I am aware that the question of probable cause for the detention is a close question in this instance, but in my opinion not close enough to defeat the ruling of the trial court in denying the defense’s motion to suppress under Penal Code section 1538.5, when the factors discussed, supra, are evaluated. I would affirm the judgment of the trial court.