IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AARON RAY WILSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 085179)
The opinion of the court was delivered by: Blease, Acting P.J.
P. v. Wilson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the denial of his motion to suppress (Pen. Code, § 1538.5),*fn1 a jury found defendant Aaron Ray Wilson guilty of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)). In a bifurcated proceeding, the trial court found true allegations defendant had three prior strike convictions (§ 667, subds. (b)-(i)) and served three prior prison terms (§ 667.5, subd. (b)).
Sentenced to 28 years to life in state prison,*fn2 defendant appeals, contending, among other things, that the trial court erred in denying his motion to suppress a knife (the alleged dirk or dagger) seized from his back pocket during a pat down search initiated after a police officer was dispatched to a public park to investigate "five subjects [possibly] smoking H and S in the men's restroom."*fn3 Defendant argues his detention was unlawful because it "was based entirely on an uncorroborated anonymous tip" and "the seizure of the knife was the result of police exploitation of [that] unlawful detention."
We shall conclude that the officer who detained and searched defendant lacked the reasonable suspicion necessary to justify the detention, and that the knife was fruit of defendant's unlawful detention. Accordingly, we shall reverse the judgment and remand the matter to the trial court with directions to vacate its order denying defendant's motion to suppress.*fn4
FACTUAL AND PROCEDURAL BACKGROUND
Prior to trial, defendant moved to suppress the evidence seized during an investigatory stop and search of his person, including the alleged dirk or dagger that was the basis for the sole charge against him, on the ground it was obtained as the result of an unlawful search.
Officer Gina Bell of the Woodland Police Department was the only witness to testify at the hearing on defendant's motion. She testified as follows: At approximately 3:00 p.m. on September 24, 2008, she "was dispatched to five subjects," three males and two females, possibly smoking an illegal substance inside the men's restroom at Harris Park in Woodland.*fn5 So far as the record reveals, there is no audio recording of the report made to law enforcement, and nothing is known about the reporting party or when the report was made.
When Bell arrived at the location specified in the dispatch, she saw three males and two females, including defendant and his wife, standing in a circle near the restrooms. Bell recognized three of the five people, not including defendant, "from prior police contacts." One of the individuals, not defendant, was known by Bell to wear a buck knife "four inches, always visible, in a sheath on his right side."
Bell, who was in uniform and armed, immediately asked the five individuals to sit on a curb "for officer safety purpose[s]" because "[t]here was [sic] five of them and one of me." They complied, and she radioed for assistance. Bell waited with the five individuals until two additional officers arrived. She then checked in and around the restrooms, while the other officers kept watch over the five individuals. Bell found a small plastic baggie floating in a toilet in the women's restroom. There was nothing in the baggie; however, she had seen contraband in that type of bag in the past, and based on her training and experience, knew "people try to flush contraband, and plastic baggies float."
When Bell finished checking the restrooms, she questioned and searched each of the five individuals one after the other. Three individuals were questioned and searched before defendant. The first indicated he was on parole, was searched, and released. The second consented to a search of her bag, a methamphetamine pipe was recovered, and she was placed under arrest. The third, who carried the visible buck knife, was searched and released. Defendant advised Bell that he was not on parole or probation, and Bell asked him "if he had anything on him he shouldn't have and he did not answer." Defendant conversed with his wife, and Bell overheard defendant's wife mention something about knives. Bell asked defendant about the knives, and he responded that he had "a lot of them." Bell then performed a pat down search of defendant "for [her] safety." Among other things, she seized a knife from his back pocket.
During cross-examination, Bell acknowledged that the dispatch did not indicate that anyone "saw them smoking methamphetamine out of a pipe or smoking a joint of marijuana," but rather it was a "[s]uspicion of the reporting party." Nor did she observe any of the five individuals engage in "any illegal or even suspicious activity" or make any threatening gestures before asking them to sit on the curb. At that point, she was just "investigating."
The trial court denied defendant's motion to suppress, finding "there were specific and articulable facts that the officer brought to the courtroom and expressed with regard to officer safety and reasonable precautions that an officer would take to make sure that something didn't get out of hand." In particular, the court noted that "[t]hese individuals were in an area where at least there was reported drug activity, though not confirmed in any true sense of the word, [and] certainly she had a right and a duty to investigate. In doing so . . . she found the knife on the person of the defendant."
Defendant contends the trial court erred in denying his motion to suppress because "the search in which police officers found the knife was the fruit of an unlawful detention." He argues the detention was illegal because it "was based entirely on an uncorroborated anonymous tip."*fn6 The People do not dispute that defendant was detained when Bell asked him and the others to sit on the curb; rather, they respond that the detention was lawful because the anonymous tip was sufficiently corroborated to furnish the requisite reasonable suspicion that defendant was engaged in criminal activity.
"'In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation].' [Citation.] In evaluating whether the fruits of a search or seizure should have been suppressed, we consider only the Fourth Amendment's prohibition on unreasonable searches and seizures." (People v. Brendlin (2008) 45 Cal.4th 262, 268 [Brendlin].)
"The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] '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.'" (In re Raymond C. (2008) 45 Cal.4th 303, 307.)
"Reasonable suspicion [to detain], like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. . . . [I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." (Alabama v. White (1990) 496 U.S. 325, 330 [110 L.Ed.2d 301, 309 [White].)
An anonymous tip alone will seldom provide the reasonable suspicion necessary for an investigative stop because "ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and . . . the veracity of persons supplying anonymous tips is 'by hypothesis largely unknown, and unknowable.'" (White, supra, 496 U.S. at p. 329 [110 L.Ed.2d at p. 308.) "[H]owever, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." (Florida v. J.L. (2000) 529 U.S. 266, 270 [146 L.Ed.2d 254, 260].)
For example, "[i]n White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. [Citation.] Standing alone, the tip would not have justified a Terry[*fn7 ] stop. [Citation.] Only after police observation showed that the informant had accurately predicted the woman's movements . . . did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. [Citation.] Although the Court held that the suspicion in White became reasonable after police surveillance, [it] regarded the case as borderline. Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. [The court] accordingly classified White as a 'close case.'" (Florida v. J.L., supra, 529 U.S. at pp. 270-271 [146 L.Ed.2d at p. 260].)
In Florida v. J.L., the court concluded that an anonymous tip "lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case." (529 U.S. at p. 271 [146 L.Ed.2d at p. 260.) There, police received an anonymous tip that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." (Id. at p. 268 [146 L.Ed.2d at pp. 258-259].) Sometime thereafter, two officers were dispatched to the bus stop where they observed "three black males 'just hanging out [there],'" one of whom, the defendant, was wearing a plaid shirt. (Id. at p. 268 [146 L.Ed.2d at p. 259].) "Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and [the defendant] made no threatening or otherwise unusual movements." (Ibid.) One of the officers approached the defendant, told him to put his hands up on the bus stop, frisked him, and seized a gun from his pocket. (Ibid.)
The court rejected Florida's contention that "the tip was reliable because its description of the suspect's visible attributes proved accurate . . . ." (Florida v. J.L., supra, 529 U.S. at p. 271 [146 L.Ed.2d at p. 261].) While "[a]n accurate description of a subject's readily observable location and appearance is . . . reliable in [the] sense [that] [i]t will help the police correctly identify the person whom the tipster means to accuse," it "does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Id. at p. 272 [146 L.Ed.2d at p. 261], italics added.) In concluding the anonymous tip lacked sufficient corroboration, the court stated: "All the police had to go on in this case was 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 about [the defendant]. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line." (Id. at p. 271 [146 L.Ed.2d at pp. 260-261].)
The same is true here. Bell had no information concerning the reporting party or the basis of his or her belief that three men and two women may have been smoking an illegal substance in the men's restroom at the park. Thus, the report was tantamount to an anonymous tip. (See In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1644 ["radio broadcast which cannot be traced back to its source amounts to nothing more than an anonymous tip"].) Apart from the tip, Bell had no reason to suspect defendant of illegal conduct. She did not observe defendant or any of the other individuals engaged in any suspicious activity, and none of the individuals made any threatening gestures or acted aggressively toward her.
The People argue the tip was corroborated by the following "suspicious circumstances" observed by Bell after arriving at the park: defendant and four others were standing in a circle outside the restroom; defendant and the others matched the description (three men and two women) given to Bell by the dispatcher; Bell recognized three of the five people, not defendant, from prior police contacts; and one of the men, not defendant, carried a four-inch buck knife in a sheath on his right side, which was visible to Bell. As we shall explain, none of these circumstances, whether considered together or alone, justified defendant's detention because none bear upon the reliability of the tip's assertion of illegality. (See Florida v. J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)
Neither defendant's location near the place where five individuals reportedly may have been smoking an illegal substance nor his inclusion in a group matching the number and gender of those who may have been engaged in the illegal activity showed that the reporting party had knowledge of concealed criminal activity. Moreover, Bell had no prior contact with defendant, and no evidence was presented concerning the nature of Bell's prior contacts with the other individuals, except that one was known to carry a buck knife in a sheath that was visible. Bell's prior contacts with some of defendant's companions, one of whom was known to carry a buck knife, could not provide reasonable suspicion that defendant had or was about to smoke an illegal substance or engage in any other criminal activity.
The cases cited by the People in support of their claim that the tip was sufficiently corroborated are distinguishable in that, unlike the present case, in each of those cases law enforcement officers observed the defendant engage in suspicious activity. In People v. Johnson (1991) 231 Cal.App.3d 1, 7, officers responded to an anonymous complaint that "'someone was selling drugs or doing drugs in the hallway of [an] apartment building'" and found the defendant crouched over in a corner of a dark hallway, peering at them, and saying nothing. When one of the officers threatened to come toward the defendant if he did not respond to the officer's instructions, the defendant put something in his mouth and fled up the stairs. (Ibid.) On that record, the court concluded "[r]easonable suspicion of drug possession existed." (Id. at pp. 11-12.)
In People v. Butler (2003) 111 Cal.App.4th 150, 153, police received an anonymous tip concerning possible "narcotics activity" involving a gray Ford Explorer at a particular location. An officer responded to the location and observed a woman standing outside the driver's door of a gray Ford Explorer; the defendant, who was in the driver's seat, handed something to the woman; and the woman handed something to the defendant. (Id. at pp. 153, 156.) Based on what he saw, the officer believed that the exchange was possibly a narcotics transaction. (Id. at p. 156.) Based on the totality of the circumstances, the court found the defendant's detention was justified. (Id. at pp. 161-162.)
Similarly, in Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 1184, and footnote 1, the court observed that the "exchange of unidentified objects in a high narcotics area" along with the possible violation of a loitering ordinance "would justify investigation . . . ."
In contrast to the cases cited by the People, here, Bell did not observe defendant or any of the other individuals engage in any suspicious activity prior to detaining them. Rather, she saw five people standing in a circle in a public park in the middle of the afternoon talking.
Relying on Pennsylvania v. Mimms (1977) 434 U.S. 106 [54 L.Ed.2d 331], the People assert that Bell's detention of defendant was justified because Bell "could reasonably have feared for her safety . . . ." Their assertion is not well taken. In Pennsylvania v. Mimms, the police stopped the defendant's car because it had an expired license plate and asked him to exit the car. (434 U.S. at p. 107 [54 L.Ed.2d at p. 334].) When the defendant exited the car, one of the officers noticed a large bulge under his jacket. (Ibid.) Fearing it might be a weapon, the officer conducted a pat search and discovered a revolver in the defendant's waistband. (Ibid.) As relevant here, the court found the pat search was justified because the bulge in the defendant's jacket gave rise to a reasonable suspicion that he might be armed and dangerous. (Id. at pp. 111-112 [at pp. 337-338].)
In contrast, here, defendant was not lawfully detained at the time of the pat search, and Bell's asserted fear for her safety was not objectively reasonable. Bell had no reason to believe defendant was armed at the time she detained him. She did not observe anything akin to a bulge in his clothing, and neither defendant nor the others made any threatening movements or acted aggressively. Accordingly, defendant's detention was not justified by Bell's purported fear for her safety.
Finally, as an apparent afterthought, the People claim the following events, all of which occurred after defendant was unlawfully detained, provided "additional support" for Bell's questioning and search of defendant: Bell's seizure of the methamphetamine pipe from one of defendant's companions; defendant's initial failure to answer Bell's question concerning whether he had anything he should not have; defendant's wife's reference to a "knife"; and defendant's statement that he had a lot of knives on his person. The People fail, however, to cite to any authority discussing when, if ever, information gleaned while a defendant is unlawfully detained may be used to support the defendant's detention and subsequent search. Our Supreme Court addressed a similar issue in Brendlin, supra, 45 Cal.4th 262, and we are guided by the court's analysis here.
There, an officer stopped a vehicle without reasonable suspicion and unlawfully detained the defendant, who was a passenger. (Brendlin, supra, 45 Cal.4th at pp. 265-266, 268.) During the course of the unlawful detention, the officer learned the defendant was a parolee at large and had an outstanding no-bail warrant for his arrest. (Id. at pp. 266, 268.) The officer then placed the defendant under arrest and searched him and the car. (Ibid.) This court ruled that the evidence seized during the search of the defendant and the car should be suppressed because "the evidence would not have been discovered '[b]ut for the unlawful vehicle stop.'" (Id. at p. 266.) Our Supreme Court found that while we were "correct in finding that but for the unlawful traffic stop, [the officer] would not have discovered the outstanding warrant for [the] defendant's arrest and would not then have conducted the search incident to arrest that revealed the contraband[,] [t]his does not mean . . . that the fruits of the search incident to that arrest must be suppressed." (Id. at p. 268.) The court explained: "'"[N]ot . . . all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"'" (Ibid.)
In concluding that "[t]he challenged evidence was thus the fruit of the outstanding warrant, and was not obtained through exploitation of the unlawful traffic stop," the court reasoned that "an arrest under a valid outstanding warrant--and a search incident to that arrest--is an intervening circumstance that tends to dissipate the taint caused by an illegal traffic stop. A warrant is not reasonably subject to interpretation or abuse [citations] and the no-bail warrant here supplied legal authorization to arrest defendant that was completely independent of the circumstances that led the officer to initiate the traffic stop." (45 Cal.4th at p. 271, italics added.)
Here, none of the events cited by the People constituted an intervening circumstance that tended to dissipate the taint caused by the illegal detention. Unlike the arrest warrant at issue in Brendlin, each of the events at issue here--the discovery of the methamphetamine pipe, the questioning of defendant, and defendant's responses to that questioning--was completely dependent on the circumstances that led Bell to detain defendant and the others in the first instance, namely the uncorroborated tip that five people were possibly smoking an illegal substance in the men's restroom. Accordingly, the People's reliance on those events as additional support for Bell's questioning and search of defendant is misplaced. Defendant's detention was unlawful and the evidence seized through the exploitation thereof, most notably, the knife seized from defendant's back pocket, was fruit of that detention, and thus, should have been suppressed.
The judgment is reversed and the matter remanded to the trial court with directions to vacate its order denying the motion to suppress.
NICHOLSON , J.
SIMS , J.*fn8