Opinion
F056005.
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. EDWARD LARRY THOMPSON, II, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
OPINION
THE COURT
Defendant Edward Larry Thompson, II, challenges the denial of his motion to suppress evidence. Thompson argues that his detention in a high-crime area, while he was wearing gang-related clothing, after attempting to evade officers, was unreasonable and the evidence seized should be suppressed. We find Thompsons detention did not run afoul of the Fourth Amendment to the United States Constitution. The detaining officers had reasonable suspicion that criminal activity was afoot and that Thompson was engaged in that activity. Finding the detention reasonable, we affirm the judgment.
PROCEDURAL AND FACTUAL HISTORIES
Count one, in a two-count information, charged Thompson with felony possession of cocaine for purposes of sale in violation of Health and Safety Code section 11351.5. Pursuant to Penal Code section 667.5, subdivision (b), the People also alleged that Thompson had served two prior prison term sentences. After pleading not guilty, Thompson moved to suppress the evidence seized during his detention. The motion was denied. Subsequently, he entered a negotiated plea of no contest to count one, the felony cocaine charge. He was sentenced to two years in prison.
Thompson was arrested after police officers found three individually wrapped bags of cocaine in his possession. The arresting officers were on routine patrol in a residential neighborhood known for its "extremely" high crime rate. The officer testifying knew the neighborhood well, had made many arrests within the area, and was aware that cocaine sales accounted for most of the criminal violations in the area.
While patrolling in the area in a marked car, the arresting officers spotted three individuals, one of whom was Thompson, joking and laughing on the sidewalk. The three were wearing what the officers identified as gang-related clothing. Specifically, the officers noticed that the three individuals were wearing loose and baggy clothing. Thompson was wearing royal blue tennis shoes and a royal blue hat. The royal blue color is associated with the criminal street gang "Eastside Crips," which was prevalent in the area. Because of the loose clothing, the officers worried about the possibility of hidden weapons. The gang-related clothing, coupled with the way the individuals were "hanging out" on the sidewalk, indicated to the officers that the individuals may be involved in drug sales.
When the three individuals noticed the police car, their manner changed abruptly and they began walking away from one another. Believing the behavior to be suspicious, the officers physically detained two of the individuals while Thompson continued walking away. At some point Thompson stopped on his own accord, at which time he was asked by an officer whether he was on parole. When Thompson answered affirmatively, he was told to sit on the curb. Thompson was searched and drugs were found in his possession.
DISCUSSION
The sole issue on appeal is whether the trial court erred in denying Thompsons motion to suppress evidence. At the suppression hearing, Thompson and the People agreed to limit the issue to whether the initial stop and detention were supported by reasonable suspicion. They agreed that if the initial detention was valid, Thompson was subject to search because he was on parole; conversely, if the detention was invalid, the fruits of the search should be suppressed. Thompson argues that his detention was not supported by reasonable suspicion as required by Terry v. Ohio (1968) 392 U.S. 1 and its progeny. The People claim there was reasonable suspicion to support the detention. Because we find there was reasonable suspicion to detain Thompson, we need not address whether the detention occurred prior to asking if he was on parole.
The standard an appellate court employs in its review of a denial of a motion to suppress evidence is well settled. (People v. Sardinas (2009) 170 Cal.App.4th 488, 493.) "We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Sardinas, supra, at p. 493.)
The Fourth Amendment permits an officer to "conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot" and that the person detained is engaged in that activity. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow); People v. Souza (1994) 9 Cal.4th 224, 230 (Souza).)
We profess the reasonable-suspicion standard to be somewhat abstract. Nonetheless, courts have always looked to the totality of circumstances of each case in determining whether the "`detaining officers [had] a particularized and objective basis for suspecting [the detainee] of criminal activity." (Souza, supra, 9 Cal.4th at p. 230; Brown v. Texas (1979) 443 U.S. 47, 52; United States v. Arvizu (2002) 534 U.S. 266, 273.) This approach allows officers to draw on their own training and experience in deciding whether criminal activity is afoot. (United States v. Arvizu, supra, at p. 273.) With this approach in mind, we now turn to the facts of this case.
In light of the detaining officers testimony, we are not persuaded by Thompsons argument that his detention was unreasonable. Thompson is correct that flight from officers, by itself, is not enough to support a finding of reasonable suspicion. But there were other facts present the trial judge reasonably could have found persuasive in denying Thompsons motion. The detention occurred in an area known to the officers for its extremely high crime rate; the three individuals were wearing loose, gang-colored clothing that often, in the testifying officers experience, is used to conceal weapons; they were gathered on the sidewalk in a way common to how drug sale transactions occurred; their demeanor immediately changed when they noticed the officers; and they all attempted to evade the officers by dispersing in separate directions.
Taken individually, each of these facts would probably not provide the officers with reasonable suspicion, but taken as a whole they do. We are not concerned with whether the officers had probable cause to arrest Thompson but with whether they had a particularized and objective basis for suspecting criminal activity was afoot. We believe they did.
Thompson relies on Wardlow, but we find his interpretation unpersuasive. In Wardlow, the high court recognized that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Wardlow, supra, 528 U.S. at p. 124.) There, the court considered "[h]eadlong flight" as a "consummate act of evasion . . . ." (Ibid.) In an attempt to distinguish Wardlow, Thompson asserts we should not equate his walking away from the officers with the "headlong flight" in Wardlow.
Although there is a factual difference between fast and slow flight, dispersing into three different directions at the sight of officers is unquestionably evasive action and as such is a strong factor supporting suspicion. As Wardlow expressed, flight "is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Wardlow, supra, 538 U.S. at pp. 119, 124; see also Souza, supra, 9 Cal.4th at p. 235 [though motivated by "innocent desire to avoid police contact, flight from police is a proper consideration—and indeed can be a key factor" in analysis].) Absent clear evidence to the contrary, courts should not determine ex post facto the sort of flight that warrants suspicion; this job is better left to an experienced officer who is better able to recognize the difference between innocent and guilty conduct. (In re H.M. (2008) 167 Cal.App.4th 136, 145.)
We are similarly not persuaded by Thompsons application of Florida v. Royer (1983) 460 U.S. 491, 497-498. Wardlow addresses and reconciles Royer within its holding. In Royer, the court held that an individual has a "right to ignore the police and go about his business" when the officer is without reasonable suspicion or probable cause to detain. (Wardlow, supra, 528 U.S. at p. 125; Florida v. Royer, supra, 460 U.S. at p. 498.) However, as Wardlow made clear, flight is not "`going about ones business; in fact, it is just the opposite." (Wardlow, supra, 528 U.S. at p. 125.) Citizens do not flee from law enforcement in their normal course of business.
Thompson also downplays the areas extremely high crime rate. In support, he draws our attention to a case holding the "`high crime area" factor to be but one factor considered within the totality of circumstances. (Souza, supra, 9 Cal. 4th at p. 240.) Our decision today does not conflict with Souza or the long line of high court cases considering the issue. (See, e.g., Wardlow, supra, 528 U.S. at p. 124 [declaring high-crime area among relevant contextual considerations in detention analysis]; United States v. Cortez (1981) 449 U.S. 411, 419 [giving "critical importance" to fact border agents knew area as being usual site for illegal border crossings]; Adams v. Williams (1972) 407 U.S. 143, 147-148 [finding areas crime rate as important factor in detention analysis].)
Because we find no Fourth Amendment violation, the trial court was correct in denying Thompsons motion to suppress evidence.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Wiseman, Acting P.J., Hill, J., and Kane, J.