IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
July 20, 2011
IN RE N.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
N.M., DEFENDANT AND APPELLANT.
(Super. Ct. No. 67933)
The opinion of the court was delivered by: Butz , J.
In re N.M.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The minor, N.M., appeals from the juvenile court's order denying his motion to suppress under Welfare and Institutions Code section 700.1 and the court's final dispositional order. His sole contention on appeal is that the court erred in denying his motion to suppress evidence seized by police in connection with his unlawful detention. We agree and shall reverse the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 2010, Tracy Police Detective Timothy Bauer was called to investigate a shooting involving two rival gangs--the Nortenos and the Border Brothers--that had taken place somewhere in the City of Tracy. He spoke with multiple witnesses who indicated that a black, four-door Lexus, without tinted windows and with a gold "L" emblem on the front, had fled the scene. The witnesses did not identify particular suspects.
Thirteen days after the shooting, Detective Bauer was at the intersection of Hollow Avenue and Cavanaugh Avenue in Tracy when he saw a vehicle he described as an "exact match" to the one that had been described by witnesses. Bauer was familiar with the neighborhood as one "claimed" by the Northside Nortenos.
Detective Bauer could see that there were four people in the car, one female and three males. He conducted a traffic stop. After he approached the car, he recognized the driver by his name. He then obtained the names and birth dates of the four occupants of the vehicle. Bauer learned that the driver and two of the passengers were on searchable juvenile probation. The minor, who was not on searchable probation, was seated in the left rear passenger seat. While searching the vehicle, officers found a loaded .22-caliber, semiautomatic Beretta handgun on the left rear floorboard of the car, under a red beanie cap.
The minor was arrested and a petition was filed alleging he came within the provisions of Welfare and Institutions Code section 602, in that he was a minor in possession of a firearm (Pen. Code, § 12101, subd. (a)), was a minor in possession of ammunition (id., § 12101, subd. (b)), and had committed street terrorism as part of a criminal street gang (id., § 186.22, subd. (a)).
The minor filed a motion to suppress the evidence seized in the search of the car, specifically the gun and the ammunition in it. The minor argued the initial stop was made without reasonable, articulable suspicion. Accordingly, the minor sought suppression of the physical and testimonial evidence obtained as a result of the stop. The court denied the motion, finding there was reasonable suspicion based on articulable facts. "It was a specific type of car, color, make, indicia of uniqueness to the extent that it had the gold markings. It was in the area known to be frequented by Nortenos. [Detective Bauer] had information that Nortenos were involved in the [prior] shooting."
The parties agreed to a negotiated disposition in which the minor admitted he had been in possession of a firearm. The ammunition allegation was dismissed in the interests of justice and the street gang allegation was dismissed for insufficient evidence. His maximum period of confinement was calculated at three years. He was adjudged a ward of the court and placed on probation.
The minor contends the juvenile court's finding that there was reasonable suspicion supporting the stop of the vehicle was not supported by substantial evidence. Specifically, he argues that the information from the witnesses to the shooting was not sufficiently reliable to form the basis of reasonable suspicion. He also contends the information Detective Bauer relied on in making the stop was too general and too remote. Based on these claims, the minor contends the evidence of the gun and ammunition should have been excluded as the "fruit of the poisonous tree." The Attorney General counters that the minor does not have standing to challenge the search of the Lexus, as he was only a passenger, and that the totality of the facts known to Detective Bauer warranted his stop of the Lexus. We find the minor has standing to challenge the stop of the vehicle and agree that, under the totality of the circumstances, Detective Bauer did not have reasonable suspicion to stop the Lexus. Accordingly, we shall reverse.
The Attorney General contends the minor did not have standing to challenge the search of the car. Although both parties discuss the issue of standing at length in their briefs, the record reflects that the People did not raise this issue in the trial court. Accordingly, the People have forfeited the issue of standing on appeal. (See People v. Erwin (1997) 55 Cal.App.4th 15, 18, fn. 1; People v. Henderson (1990) 220 Cal.App.3d 1632, 1641.)
Furthermore, even if the issue was not forfeited, contrary to the Attorney General's argument, the minor is not challenging the search of the vehicle. Rather, he is challenging the stop of the vehicle as an unlawful detention and the seizure of the gun and ammunition as the fruit of the poisonous tree flowing from that unlawful detention. As independent Fourth Amendment events, the initial stop and subsequent search require separate analyses. To suppress evidence based on an unconstitutional seizure, the minor need not establish an expectation of privacy in the vehicle, but must demonstrate that "his own Fourth Amendment rights were violated." (Rakas v. Illinois (1978) 439 U.S. 128, 132, fn. 1 [58 L.Ed.2d 387, 393].) His status as a passenger does not prohibit him from establishing a personal violation resulting from the stop because when a police officer stops a vehicle, both the driver and the passenger are seized within the meaning of the Fourth Amendment. Accordingly, the passenger "may challenge the constitutionality of the stop." (Brendlin v. California (2007) 551 U.S. 249, 251 [168 L.Ed.2d 132, 136].)
II. Reasonable Suspicion
"The standard of review of a trial court's ruling on a motion to suppress is well established and is equally applicable to juvenile court proceedings. '"On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court's ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court that are supported by substantial evidence and independently determine whether the facts support the court's legal conclusions."'" (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
"To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer's subjective state of mind at the time of the stop or detention." (People v. Conway (1994) 25 Cal.App.4th 385, 388 (Conway).) "Few statements in the law are as often repeated: '[A]n investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.'" (People v. Durazo (2004) 124 Cal.App.4th 728, 731.) The officer's decision must be "considered in light of the totality of the circumstances." (People v. Souza (1994) 9 Cal.4th 224, 231.)
Here, the specific, articulable facts offered to support the investigative stop are as follows: (1) a shooting occurred somewhere in Tracy and involved the Nortenos; (2) suspects left the scene in a black, four-door Lexus without tinted windows and with a gold "L" emblem on the front of the car; and (3) thirteen days later, a black, four-door Lexus without tinted windows and with a gold "L" emblem on the front was at an intersection in Tracy, in a neighborhood claimed by Nortenos. This is not enough information to support a specific and articulable suspicion that criminal activity is afoot and the people in the car were involved in that activity.
Standing alone, a vague description does not provide reasonable grounds to stop every person falling within that vague description. (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382 (Carlos M.).) Nor can mere presence in an area claimed by gang members supply the necessary reasonable suspicion. (See People v. Pitts (2004) 117 Cal.App.4th 881, 887 (Pitts).) However, more particularized descriptions, together with additional circumstances known to the officer, may justify a stop. (Carlos M., supra, 220 Cal.App.3d at p. 382.) The type of additional descriptions or circumstances typically relied on by officers in making investigatory stops include: the approximate style and color or vintage of the car (People v. Lazanis (1989) 209 Cal.App.3d 49, 54 (Lazanis); People v. Flores (1974) 12 Cal.3d 85, 89-91) (Flores)); a full or partial license plate number (People v. Jones (1981) 126 Cal.App.3d 308, 314); body damage to the car or some type of individualized physical characteristic (United States v. Hurst (6th Cir. 2000) 228 F.3d 751, 757; Orricer v. Erickson (8th Cir. 1973) 471 F.2d 1204, 1207); information on the physical characteristics of the suspects, such as age, gender, race, hair and eye color, height and build, and attire (Carlos M., supra, 220 Cal.App.3d at pp. 380-382;People v. Fields (1984) 159 Cal.App.3d 555, 564; People v. McCluskey (1981) 125 Cal.App.3d 220, 223; People v. Craig (1978) 86 Cal.App.3d 905, 911-912); or a close temporal or geographical connection between the crime and the car or suspects (Conway, supra, 25 Cal.App.4th at p. 390; Lazanis, supra, 209 Cal.App.3d at p. 54; People v. McCluskey, supra, 125 Cal.App.3d at p. 223; United States v. Hurst, supra, 228 F.3d at p. 757; United States v. Juvenile TK (8th Cir. 1998) 134 F.3d 899, 903-904).
Relying on a single case, In re Dung T. (1984) 160 Cal.App.3d 697 (Dung T.), the Attorney General argues that Detective Bauer relied on "specific, articulable facts that provided some objective manifestation that the occupants of the Lexus could be connected to the unsolved shooting 13 days earlier." But Dung T. does not support the claim that the stop by Detective Bauer was based on reasonable suspicion. In Dung T., there were significant additional details that provided support for the stop. In that case, Officer Matthews was investigating a robbery committed the night before. The robbers were described as six Vietnamese males in their early twenties. The car in which they fled the scene, a Dodge, was described by a witness. The next night, Officer Matthews saw a Dodge that matched the description of the one used in the robbery. The witness was brought to the scene and identified it as the car in which he had seen the robbers flee. The officer kept the car under surveillance. The next night he saw the Dodge being driven by eight young Vietnamese men and stopped them. (Dung T., at pp. 704-705.) Thus, in Dung T. the officer knew that a robbery had been committed by six young Vietnamese males. The particular car he stopped was the specific one identified as having been driven by the robbers, and at the time he stopped the vehicle, it was occupied by eight young Vietnamese males. There was reasonable suspicion to support the stop because the officer had descriptions of the perpetrators that included a general description of their age and race, and a specific identification of the particular vehicle he stopped. (Id. at p. 713.)
We have found no case upholding an investigative stop based on a generalized vehicle description, an unknown distance from the scene, almost two weeks after the crime was committed. Rather, the cases upholding the stops all have some additional circumstance that justifies reasonable suspicion.
Something unique or identifying about the vehicle itself can serve as the necessary "additional circumstance." (Flores, supra, 12 Cal.3d at pp. 89-91 [witnesses described car used by suspects in residential burglary as a 1940's dark-colored, "fastback" General Motors sedan, and four days later, about two miles from the residence, an officer stopped a 1947 Pontiac that fit the description of the car]; see also United States v. Hurst, supra, 228 F.3d at p. 757 [missing front grill of suspect vehicle was sufficiently distinctive to justify stop, when combined with match to general vehicle description, and vehicle was seen within a few minutes of the crime at a location consistent with the route traveled by suspects]; Orricer v. Erickson, supra,471 F.2d at p. 1207 [within one hour of reported burglary, in small town with little vehicular and pedestrian traffic, officers stopped car bearing out-of-county license plates during early morning hours].)
Both general and more particularized descriptions of the suspects may provide the necessary additional circumstances to justify a finding of reasonable suspicion. (Carlos M., supra, 220 Cal.App.3d at pp. 380-382 [minor matched the suspect's description as to "ethnicity, sex, age, [and] attire ([a] red shirt)," was found near the crime scene, in the presence of another more particularly described suspect, within one hour of the crime]; People v. Fields, supra, 159 Cal.App.3d at p. 564 [description of "assailant . . . provided several unique distinguishing features--sex, height, race, age and attire," and suspect found in general vicinity of crime within six hours of crime]; People v. McCluskey, supra, 125 Cal.App.3d at pp. 223-225 [description of suspect as a male Chicano, 19 to 21 years old, about 5 feet 10 inches tall, brown hair with center part, moustache, and wearing a blue jacket, sufficient to detain a 20-year-old Mexican male with dark hair and wearing a dark jacket, riding as a passenger in a car five minutes after burglary and two to three blocks away]; People v. Craig, supra, 86 Cal.App.3d at pp. 911-912 [defendants were substantially the same race, sex, build, and number as had been described]; United States v. Price (7th Cir. 2003) 328 F.3d 958, 959 [two minutes after receiving a dispatch that a bank was robbed by a Black man wearing a ski mask, blue jeans and blue shirt, who fled on foot, officer observed the defendant, who matched the description, with a gun tucked into his waistband, less than 1,000 feet from the bank]; but see In re Tony C. (1978) 21 Cal.3d 888, 898 [description of "three male blacks" of unspecified ages in day-old burglary report did not justify detention.)
Temporal and geographic proximity to the crime scene may also provide the necessary support for reasonable suspicion. (Conway, supra, 25 Cal.App.4th at p. 390 [at approximately 3:00 a.m., an officer received a report of a burglary in progress in the area with no description of suspects and no information as to mode of transportation; less than two minutes later, he saw a car leaving the area and stopped it]; see also Lazanis, supra, 209 Cal.App.3d at p. 54 [car stopped moments after officers arrived at scene of reported burglary, and saw a small white Mazda pulling away from the scene heading southbound, with three suspects]; People v. Jones, supra, 126 Cal.App.3d at pp. 313-314 [report of assault with a deadly weapon "indicated the suspects, two Negro males, were last seen leaving the area in a brown 1965 Oldsmobile or Pontiac sedan, California license 276 ABA" within four minutes, less than two miles away from the scene, officer observed "two Negro males riding in a tan over brown 1970 Oldsmobile sedan, California license 276 AFB" and thereafter pulled the car over]; United States v. Juvenile TK, supra, 134 F.3d at pp. 903-904 ["two dispatches released approximately  minutes apart in the very early morning hours, identifying a male with a gun in a gray vehicle" spotted within five minutes of second dispatch and two blocks away from scene of robbery].)
No such additional circumstances are present in this case. There is no indication in the record how far from the crime scene the vehicle was when it was stopped. The crime had happened nearly two weeks earlier. There was no physical description of the shooters. The only information about them at all was they were believed to be Nortenos. There was no evidence that prior to the stop, the detective believed anyone in the car was a Norteno or affiliated with the Nortenos. There was no evidence regarding whether a Lexus is a make of car uncommon to the streets of Tracy. There was nothing particularly identifying or unique about the description of the car. In short, there was nothing to connect a black Lexus sedan seen 13 days earlier at an unknown location to this black Lexus sedan. Nor, without more, can the fact that the car was in a neighborhood "claimed" by Nortenos fill in the informational void and elevate these facts to reasonable suspicion. (See Pitts, supra, 117 Cal.App.4th at p. 887.) As with "high crime" neighborhoods, many citizens live in neighborhoods "claimed" by gangs and are themselves unaffiliated with gangs. (Ibid.) They may live there, or "'"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 [gang-claimed] areas."'" (Ibid.) As such, presence in such a neighborhood, without more, cannot provide reasonable suspicion.
We have found no cases, and the Attorney General has cited none, to support the conclusion that reasonable suspicion can be founded on such a generalized description of a vehicle and suspects with no temporal or geographic proximity to the crime scene. Given the generality of the vehicle description, the virtual lack of suspect descriptions, the absence of geographic or temporal proximity to the crime scene, and no other circumstances indicating the people in the Lexus were involved in the shooting, we cannot find reasonable suspicion to support the stop. The presence of additional circumstances might have led us to a different conclusion. For example, if the detective testified prior to the stop that he recognized at least one of the occupants as a known Norteno; if the stop had occurred shortly after the shooting; or, if the car had unusual features that would distinguish it from other similar cars. However, based on the evidentiary record before us, we are constrained to conclude that the stop was not justified.
III. Fruit of Poisonous Tree
Although the Attorney General makes no argument on this point, our analysis does not end with the determination that the stop was not supported by reasonable suspicion. "[E]vidence may be excluded as 'fruit of the poisonous tree' where its discovery 'results from' or is 'caused' by a Fourth Amendment violation. [Citation.] Exclusion is not required, however, where the evidentiary 'fruit' is derived from a source that is independent of the 'poisonous' conduct or where '"the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'"'" (In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.)
Evidence will be suppressed when it has been procured by a method, such as illegal police action, that taints it. (People v. Brendlin (2008) 45 Cal.4th 262, 268, 271.) But suppression is not justified simply because the illegal action was a but-for cause of obtaining the evidence. (Ibid.) The question is whether the evidence was obtained by exploitation of the illegal action or "'"'instead by means sufficiently distinguishable to be purged of the primary taint'"'" so that the taint is attenuated. (Id. at p. 268.) In conducting this attenuation analysis, we evaluate the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. (Brown v. Illinois (1975) 422 U.S. 590, 604 [45 L.Ed.2d 416, 427] (Brown).) People v. Brendlin provides guidance on the application of those factors to this case.
In People v. Brendlin, supra, 45 Cal.4th 262, after officers made an unlawful traffic stop, they discovered defendant had an outstanding arrest warrant. (Id. at p. 265.) Officers conducted a search incident to defendant's arrest pursuant to that warrant and discovered drugs and drug paraphernalia. The question in People v. Brendlin was "whether evidence seized in a search incident to a lawful arrest based upon a valid outstanding warrant nonetheless must be suppressed because the discovery of the warrant occurred during an unlawful traffic stop. (Ibid.) Relying on the factors in Brown, "Our Supreme Court held that, in the absence of purposeful or flagrant police misconduct, discovery of an outstanding arrest warrant attenuates the taint of an antecedent unlawful traffic stop." (People v. Carter (2010) 182 Cal.App.4th 522, 529, citing People v. Brendlin, supra, 45 Cal.4th at pp. 265, 269.)
Here, as in People v. Brendlin, there were only a few minutes between the unlawful stop and the discovery of the searchable probation conditions that led to the search of the vehicle and the minor's arrest. While this factor may tend to favor suppression, it is not dispositive of the point. (Brown, supra, 422 U.S. at p. 603 [45 L.Ed.2d at p. 427] ["No single fact is dispositive."]; People v. Brendlin, supra, 45 Cal.4th at p. 270.)
The nature of the intervening circumstance, a searchable probation condition, in this case is analogous to that in People v. Brendlin, an arrest warrant. As with the warrant in People v. Brendlin, the probation condition here was "not reasonably subject to interpretation or abuse" and supplied independent legal authority to search the vehicle. (People v. Brendlin, supra, 45 Cal.4th at p. 271.) Accordingly, as in People v. Brendlin, these factors tend to dissipate the taint caused by the illegal stop. (Ibid.)
It is with regard to the third factor, the flagrancy and purposefulness of the official misconduct, that this case departs from People v. Brendlin. In general, this factor is viewed as the most important of the three, "because 'it is directly tied to the purpose of the exclusionary rule--deterring police misconduct.'" (People v. Brendlin, supra, 45 Cal.4th at p. 271.) "Where the seizure is flagrantly or knowingly unconstitutional or is otherwise undertaken as a fishing expedition, the third Brown factor will make it unlikely that the People would be able to demonstrate an attenuation of the taint of the initial unlawful seizure." (People v. Brendlin, at p. 272.) This is a case which demonstrates that difficulty.
People v. Brendlin arose in the context of a traffic stop for a perceived Vehicle Code violation (expired registration tabs). In finding that the officer's conduct was not purposeful or flagrant, the Supreme Court relied heavily on the fact that there was no indication in the record that the officer "had a design and purpose to effect the stop 'in the hope that something [else] might turn up.' [Citations.] In particular, there is no evidence at all that the deputy 'invented a justification for the traffic stop in order to have an excuse to run [a] warrant check' [citation] or that a search of the vehicle or its occupants was the 'ultimate goal' of the initial unlawful detention." (People v. Brendlin, supra, 45 Cal.4th at pp. 271-272.)
In this case, the stop was not initiated based on a perceived traffic violation. It was made as part of Detective Bauer's investigation of the shooting 13 days earlier. There is no question that when Bauer stopped the Lexus, he was hoping to uncover evidence relevant to the shooting. The sole purpose of the stop was to investigate the car and its occupants. The stop was undoubtedly investigatory in nature.
Initiating an investigatory stop without reasonable suspicion "in an effort to advance the investigation or to embark on a fishing expedition in the hopes that it would lead to a confession or other useful evidence" is flagrant and purposeful misconduct.*fn1 (United States v. Reed, supra, 349 F.3d at p. 465; Brown, supra, 422 U.S. at p. 605 [45 L.Ed.2d at p. 428]; United States v. Miller (5th Cir. 1998) 146 F.3d 274, 280; United States v. Varela-Delgado (W.D.Tex. 2008) 547 F.Supp.2d 704, 715.) While more egregious instances of misconduct are possible, the misconduct at issue here "undermine[s] the purpose of the Fourth Amendment" (United States v. Reed, supra, 349 F.3d at p. 465) and is the very type "of police behavior that the Brown . . . test is meant to discourage" (United States v. Miller, supra, 146 F.3d at p. 280). In light of the Brown factors, we find that the existence of the probation search conditions of the vehicle's occupants did not cure the taint of the unconstitutional stop. Accordingly, the motion to suppress should have been granted and the gun and ammunition found in the vehicle should have been suppressed.
We have determined that the motion to suppress should have been granted. Because there was no legally admissible evidence to support the juvenile court's finding that the minor possessed the firearm and ammunition discovered in the Lexus, the jurisdictional order and the dispositional order continuing the minor's wardship are reversed.
We concur: ROBIE , Acting P. J. DUARTE , J.