Super. Ct. No. C1198729) Trial Court: Santa Clara County Superior Court No.: C1198729 Trial Judge: The Honorable Marcel B. Poche
The opinion of the court was delivered by: Duffy, J.*fn14
CERTIFIED FOR PUBLICATION
Everett Robert Walker, a young Black man, disembarked late in the evening in November 2010 from a train at the light rail station in downtown San Jose. He was stopped by Santa Clara County Deputy Sheriff Frank Thrall, who suspected that defendant might have been one of two young Black male suspects involved in a sexual battery occurring one week earlier at the same station. The deputy asked defendant to show proof that he had paid fare, and he responded by asking why the deputy was singling him out among all passengers. Deputy Thrall indicated that he had a right to ask defendant for proof of fare and that he resembled a suspect in a sexual battery investigation; he then asked defendant for identification. After he was detained by the deputy and defendant produced an identification card determined to belong to someone else, he was arrested. A search incident to the arrest yielded cocaine base and marijuana.
Defendant moved to suppress seized evidence pursuant to Penal Code section 1538.5.*fn1 The court denied the motion to suppress. Defendant then pleaded guilty to the felony offense of cocaine base possession for sale or purchase, as well as a misdemeanor and an infraction. The court suspended sentencing and granted three years' probation.
Defendant challenges the conviction entered on his guilty plea, contending his detention, warrantless search, and arrest constituted an unreasonable search and seizure because Deputy Thrall did not have a reasonable and articulable suspicion that defendant had been or was about to be engaged in criminal activity. Defendant argues that because the deputy did not have a reasonable suspicion supporting his decision to detain defendant, his subsequent production of the false identification and the contraband discovered during the search of his person when he was arrested should have been suppressed. We agree with defendant that Deputy Thrall did not have a reasonable suspicion of defendant's involvement in criminal activity at the time he was detained. Accordingly, because the trial court's contrary finding was not based upon substantial evidence, we will reverse the order of probation and remand the matter to the trial court with directions to dismiss the cause.
PROCEDURAL AND FACTUAL BACKGROUND*fn2
Defendant was charged by information with possession of cocaine base for sale or purchase, a felony (Health & Saf. Code, § 11351.5); giving a false name to a peace officer upon lawful detention or arrest, a misdemeanor (§ 148.9); and possession of 28.5 grams or less of marijuana, an infraction (Health & Saf. Code, § 11357, subd. (b)).
II. The Motion to Suppress
Defendant argued generally in his motion to suppress evidence pursuant to section 1538.5 that "[t]he detention, search, seizure and arrest in the present case were unreasonably conducted without a search or arrest warrant" and that "[a]ll evidence found as a result must be suppressed . . ." He asserted further that because the search or seizure occurred without a warrant, it was the People's burden to provide evidence that the search or seizure was constitutionally justified.
The People opposed the motion. They argued that the detention and subsequent arrest of defendant were lawfully conducted. They claimed that the initial encounter was lawful because Deputy Thrall had a right to demand that defendant show proof that he had paid fare. The People cited section 640, subdivision (c) in support of this position. Secondly, they argued, citing Terry v. Ohio (1968) 392 U.S. 1, that defendant's detention was lawful because Deputy Thrall "ha[d] a reasonable suspicion that criminal activity [was] afoot and that [defendant was] connected with it. [Citation.]" That reasonable suspicion was based upon "the totality of [the] circumstances," including the deputy's having observed defendant exiting the train at the station where a sexual battery had occurred one week earlier and having concluded "that Defendant resembled the suspect in many ways: height, weight, age, nose shape, hair color, hair line and skin color."
An evidentiary hearing followed on June 21, 2011. The evidence presented at the hearing, consisting of the testimony of two witnesses, follows.
Detective Henry Woo of the Santa Clara County Sheriff's Department prepared an e-mail on November 18, 2010, concerning an incident that had occurred one week earlier. He reported that there had been a sexual battery at approximately 12:20 p.m. on November 11, 2010, at the Santa Clara South light rail station in downtown San Jose. Detective Woo requested that deputies be on the lookout for two adult Black male suspects who had been involved in the incident. He described one of the suspects (Suspect One) as a "[B]lack male adult, approximately in his 20's, approximately six[-]one, 195, short afro, clean shaven, light complected, appeared unkempt[,] wearing a backpack." Detective Woo described the other suspect (Suspect Two) as a "[B]lack male adult, 30's, approximately five[-]five, 195, short hair[,] unkempt with a body odor[,] wearing a black sweatshirt jacket with a hood and black pants." He indicated in the e-mail that "[b]oth [suspects] appear to be regulars in the area as one pointed out his 'crew' nearby." Detective Woo included as attachments to his e-mail several photographs of the suspects obtained from surveillance video.
On the evening of November 18, 2010, Deputy Thrall was working as "a member of the route stabilization team[,] which is a plain clothes detail which is responsible for directed enforcement within the public transportation system . . . focus[ing] on street-level crimes . . . " At the start of his shift that day at 2:00 p.m., he and other deputies were briefed by a supervisor about the November 11 sexual battery. Pursuant to the supervisor's instructions, Deputy Thrall reviewed Detective Woo's e-mail and its attachments and also viewed the surveillance video capturing the November 11 crime. At approximately 10:15 p.m. that evening, he and two other deputies were patrolling the Santa Clara South light rail station. Deputy Thrall ...