People v. Gollihar CA3 ( 2016 )

Filed 2/18/16 P. v. Gollihar 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C077600
Plaintiff and Respondent, (Super. Ct. No. MF036870A)
v.
DELBERT LEON GOLLIHAR,
Defendant and Appellant.
After receiving probation for possession of a controlled substance pursuant to a
plea agreement, defendant Delbert Leon Gollihar appeals, contending the trial court erred
by denying his motion to suppress evidence. (Pen. Code, § 1538.5; unless otherwise set
forth statutory references that follow are to the Penal Code.) We affirm the judgment.
FACTS AND PROCEEDINGS
An information filed December 12, 2013, charged defendant with possession for
sale of methamphetamine (count 1; Health & Saf. Code, § 11378) and carrying a
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switchblade knife (count 2; § 21501, subd. (b)), and alleged a prior conviction for
violating Health and Safety Code section 11378.
Defendant filed a motion to suppress evidence, asserting that his warrantless
detention, the search of his person, and his arrest were unlawful. Defendant’s “summary
of anticipated evidence” alleged: Officers responded to a dispatch about an altercation
between a male and a female at 19 West Whittier Avenue in Tracy. Instead, they went to
19 East Whittier Avenue, where they encountered defendant and another adult male, who
did not fit the caller’s descriptions and were doing nothing illegal.
Opposing the motion, the People asserted the officers had reasonable suspicion to
detain defendant because he attempted to flee from them and because they were acting on
a corroborated tip from an informant; they had reasonable suspicion to do a pat down
search because he acted nervous and had a suspicious object in his pocket; they had
probable cause to arrest defendant when they found an illegal switchblade on his person;
and they found methamphetamine on his person through a search incident to arrest.
At the hearing on defendant’s motion, Tracy Police Corporal Daniel Pasquale
testified as follows:
Around 2:25 p.m. on August 25, 2013, he and his partner, in uniform, were
proceeding southbound in a marked patrol car on Holly Drive around 20th or Emerson.
(A map in evidence at the hearing shows that 20th Street, Whittier Avenue, and Emerson
Avenue are parallel east-west streets; 20th Street is one block north of Whittier Avenue
and Emerson Avenue is one block south of Whittier Avenue. Holly Drive is the dividing
line between East Whittier Avenue and West Whittier Avenue.) At that time, they
received a radio dispatch about an argument between a man and a woman at “19 East
Whittier Avenue,” near a white sedan. According to the dispatch, the woman was in the
car and the man was outside yelling at her, possibly armed with a metal rod or crowbar.
Being only a block or two away, the officers reached 19 East Whittier Avenue
“within a minute or two.” Corporal Pasquale recalled turning right onto Whittier Avenue
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from Holly Drive; if he had actually done so while heading southbound on Holly Drive,
that would have put him onto West Whittier Avenue. The officers did not record the
exact time they arrived. They had heard “probably two” radio transmissions about the
call.
The officers had no further description of the subjects. Corporal Pasquale
believed a description of the male subject (or of his clothing) came in later, “but we were
already out of the car at the time, so I wasn’t paying attention to it.” They were “literally
around the corner” when they heard the original dispatch; then, on reaching the site of the
detention, “we got out of the car and were dealing with things.”
The officers saw a white sedan parked in the driveway at 32 East Whittier Avenue
and two people standing “right against it” in the driveway outside the passenger door.
One had “longer” grey hair; the other also had “somewhat longer hair,” though shorter
than the first person’s. Corporal Pasquale could not remember what the first person was
wearing; the second person had on shorts and a white tank top. One person was waving
his or her arms; Corporal Pasquale could not tell if the person was angry or telling a
story. The other was just standing against the car. Neither was holding a crowbar or any
similar object. From four or five houses away, coming off Holly Drive, the officers could
not determine the persons’ genders.
As Corporal Pasquale got out of his patrol car, one of the persons (later identified
as defendant) started walking very fast toward the front door of the house at 32 East
Whittier Avenue, while the other person (later identified as Christian Lamar) stayed put.
Defendant’s speed caught Corporal Pasquale’s attention. Because of that conduct, and
because Corporal Pasquale did not know yet whether the persons at the scene were the
ones described in the dispatch, he decided to talk to defendant.
Corporal Pasquale said, “Stop, police” when defendant was five feet from the car,
but defendant kept walking. Defendant also failed to respond to a second call to stop.
Corporal Pasquale could see, but not identify, an object in defendant’s closed left hand.
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As defendant got near the front of the house, Corporal Pasquale intercepted him
and asked what was in his left hand; defendant showed it was his wallet. Seeing a metal
clip on defendant’s right pants pocket, Corporal Pasquale asked if defendant had weapons
on his person. Defendant responded, “I’m not searchable.” When Corporal Pasquale
pointed to the metal clip and asked what it was, defendant said it was a knife. Officer
Daniel Woods, who had arrived separately at the scene, took the knife from defendant
and opened it. Observing that it was an unlawful switchblade or gravity knife, the
officers arrested defendant. On searching his person, they found a baggie suspected of
containing methamphetamine.
Officer Woods testified that he heard the radio dispatch and arrived at the location
of the detention as the backup to Corporal Pasquale. Patrol cars have mobile data
computers which transmit information in printed form, but it is very difficult to read the
transmissions line by line while driving, so officers usually just go by the radio dispatch
until they have a chance to read the printout.
Officer Woods did not recall any description of the persons involved in the
altercation, other than that one was male and the other female. He also did not recall
what time he got to the scene.
When Officer Woods arrived, Corporal Pasquale was talking to defendant about
the dispatch, while Pasquale’s partner was talking to the other person who had long hair,
wore shorts and a “wife beater” tank top, and “looked kind of like a female.” Officer
Woods believed the tank top was white, though he was not completely sure; he did not
remember the color of the shorts. When Officer Woods got close to the person, he
realized it was a male whom he had dealt with before. Defendant was wearing pants and
a shirt, which Officer Woods remembered as “darker in color,” but could not remember
the exact color.
Defendant denied that he had anything to do with the reported altercation and kept
trying to go into the house. Just before they began the pat down search, Corporal
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Pasquale said he had seen the metal clip in defendant’s pocket. Officer Woods knew that
knives carried with such clips are sometimes modified. When he removed the object,
which was attached to the clip, he determined that it was an unlawful gravity knife.
Officer Dwayne Pavelski, who was Corporal Pasquale’s field trainee on the date
of the crime, testified that he could not recall whether dispatch gave the address as East
or West Whittier Avenue, or whether they went to East or West Whittier Avenue; he
remembered only that the street number was 19. He did not receive a description of the
man and woman involved in the altercation. He could not recall the clothing of the
persons the officers encountered. At first sight, he thought they were females because he
saw only their long hair from the back.
Tim Silva testified that as he sat in the front room of a friend’s residence at 76
West Whittier Avenue, he heard a disturbance outside. He opened the door and saw a
man yelling at a woman. When the man got louder and more agitated, Silva called 911.
He saw two cars, one of which was white. He heard the woman ask the man for her car
keys, then saw him throw them onto the sidewalk. After Silva walked back inside, he
heard a bang, like the sound of someone hitting a car with a pipe or other metal object.
The woman tried to start the parked white car, but it would not start, so she walked off
toward Court Drive, one block west of Holly Drive. Then the man got in his car, which
had been parked behind the white car, turned around, and drove off down Holly Drive.
Silva described the male as white, five feet six or five feet seven inches tall, in his
late 30’s or early 40’s, and bald; he described the woman as white, brown-haired, and
about the same height as the man. He did not remember if he described their clothing.
He did not see the man with any sort of weapon.
A recording of the 911 call was played, and Silva authenticated it.
Sandra Zepeda, acting dispatch supervisor for the Tracy Police Department,
testified generally as to dispatch procedures, and specifically as to Defendant’s Exhibit A,
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a printout titled “Incident Inquiry,” which recorded the history of the 911 call and the
police response.
When a 911 caller and the dispatcher start talking, the dispatcher pulls up a screen
and starts entering the information. Once the dispatcher hits “enter,” the information
goes to a second dispatcher, who transmits it by radio to officers in the field; it also
“eventually” shows up on their cars’ mobile data computers. The call history would not
show when the officers communicated back to the dispatcher.
The Incident Inquiry in this case showed that the department received the call at
2:24 p.m. The dispatcher who took the call, identified on the printout as “1162,” was
Jessica Rindell, who no longer worked for the department. The radio dispatcher,
identified on the printout as “632,” was Ed Herrera.
According to the printout, Rindell entered the location of the reported incident as
19 West Whittier Avenue. That information was received at 2:24:45 p.m., when the call
came in. The information went out to the officers when Herrera dispatched it at or after
2:26:20 p.m. The address was consistently shown on the printout as 19 West Whittier
Avenue.
The 911 transcript, offered in evidence as Defendant’s Exhibit C, shows the
following:
At 2:23:44 p.m., Rindell answered the call. Silva stated: “Ah, yeah, I want to
report a, a couple, a man and a woman, fighting at 19 West Whittier.” Rindell repeated
the address, and Silva confirmed it. He added that the man had a “big old bar” or “metal
rod” in his hand (“something like” a crowbar “but longer”), was trying to get in the
woman’s small white sedan, and was “kind of going berserk.” He could not say whether
the man was threatening the woman with the bar because it was out of his view, but the
man was “up in her face and being very, very aggressive towards her.”
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Both persons looked white. The man was wearing “green or something” shorts
and a T-shirt; the woman was wearing “like a black skirt . . . a little above her knees” and
“some kind of shirt” of a color Silva could not name.
Silva reported that the man was hitting the woman’s car with the bar or rod while
she was inside the car, then trying to get into it. Rindell asked whether the people were
still there.
At 2:26:03 p.m., Herrera spoke for the first time: “Tracy Incoming detail 415.
19 West Whittier. One Nine West Whittier. Male subject with a possible crowbar hitting
a vehicle. A female’s inside the car.”
At 2:26:24 p.m., Silva told Rindell that the woman was still sitting in the car. He
then said she had been unable to start her car, so she was walking west on West Whittier
toward Court Drive. She was a “brunette” wearing a black shirt with a gray skirt. The
man did not appear to be following her, but her car was still in front of 19 West Whittier.
He left in his car.
At 2:26:25 p.m., the transcript shows “Radio Traffic” “[u]nintelligible.”
At 2:26:45 p.m., Herrera stated: “Vehicle’s going to be a white sedan. Male’s a
W [sic] male. He’s got a T-shirt and shorts. W femme [sic] has a black shirt, correction
black skirt. Unknown shirt.”
At 2:27:29 p.m., Herrera stated: “Yes, talking to Whittier. The vehicle’s [sic]
now walking westbound on Whittier towards Court. Got a black shirt, grey skirt, brown
hair.”
At 2:27:45 p.m., “Radio Traffic” stated: “[Unintelligible] copy.”
At 2:28:33 p.m., Rindell asked Silva what kind of car the male was in; he replied:
“Um, it was a little silver 2-door car [unintelligible].” Asked which direction the male
went, Silva replied that he went toward Holly Drive, but his direction from there was
unknown. Asked if there was anything else he remembered about the male, Silva replied:
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“He had real short hair; maybe even bald.” He was about five feet seven inches tall. His
T-shirt was olive green or olive drab green, and his shorts were green too.
At 2:29:02 p.m., Herrera stated: “The vehicle is still there. The male got into
another silver, 2-door type vehicle and left towards Holly. Unknown from there.”
Following further unintelligible “Radio Traffic” at 2:29:50 p.m., a speaker
identified as “Radio Traffic” stated at 2:30:13 p.m.: “285-195 in the area and for your
info, we haven’t seen that coming southbound Holly--that vehicle.”
At 2:30:37 p.m., “Radio Traffic” stated: “We’re out on Whittier.”
At 2:31:53 p.m., “Radio Traffic” stated: “We have 429 probation warrant” and
identified the subject as Christian Lamar (the other person found with defendant).
At 2:32:49 p.m., “Dispatcher #2” stated: “1026 DL’s expired.”
At 2:35:28 p.m., “Radio Traffic” called in defendant’s name.
Finally, at 2:36:17 p.m., Herrera told “Radio Traffic” as to “1026”: “Negative
probation. DL’s suspended.” “Radio Traffic” replied: “We’re going [to] have him
[unintelligible] right now for possible 11378. [¶] . . . [¶] [a]nd 653k.”
Defense counsel argued defendant’s detention was unlawful because (1) the
officers were on the wrong block; (2) the male suspect had already left and the female
victim had walked away; (3) the 911 tape recorded an officer stating he was on Holly
Drive and did not see the male’s silver vehicle; (4) neither defendant nor his companion
fit the description of the male suspect as “short hair, maybe bald”; and (5) defendant
notified the officers he was not on probation or searchable. The trial court asked how far
19 West Whittier Avenue was from 19 East Whittier Avenue; the prosecutor answered
correctly: “One block.”
The trial court denied the defense motion, reasoning as follows:
“I think there are a couple of significant factors. First of all, the officer said we
were within a block or two of the location when they received the call. And it took them
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a minute or two to get to the location. And the D.A. asked why did you stop the
defendant and he said because I wasn’t sure if he was one of the people involved or not.
“There are a number of discrepancies here. We have on the tape, ‘bald head’ for
the suspect. The defendant does not have a bald head. One officer thought--from a
distance, he thought he looked like a woman because he does have long hair. And also
we have the issue of the--in the middle of all of this, the original caller says that . . . the
woman had taken off and walked away and the male had driven off in another
automobile.
“So apparently the officers did not hear that information and perhaps this is
because this is all going on as they are getting out of the vehicle and going to the scene.
“So they go to the scene and they see the suspect. Officer Pasquale sees the
suspect and he sees the parked white vehicle, two people near it, and the call had said one
was possibly armed with a crowbar. One person, Officer Pasquale says, was waving his
arms and then the other person started walking fast towards the house, that was the
defendant. Officer Pasquale said, ‘Stop. Police.’ He said that two times and he saw him
with something in his hand. It turns out to be a wallet.
“So Officer Pasquale intercepted him before he got into the house. So why did
Officer Pasquale do this? Because he said he didn’t know who the defendant was, if he
was involved in this or not.
“So this, I think, is an [In re Tony C. (1978) 21 Cal.3d 888 (Tony C.)] situation.
Now, we have that other issue of the fact that it was aired, that the apparent suspect had
left, the apparent victim had left, but--but Officer Pasquale, just on the issue of Tony C.
. . . , does the officer--is there, I think it’s rational suspicion that some criminality--
criminal activity is afoot and also that the defendant is connected with it.
“So here the officer has this information that possible criminal activity . . . has
been taking place at this location or certainly within a block of this location. He sees a
white car. He sees two people there. He thinks that one of them might be a woman. And
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this is not just a slow moving situation. It sounds as though it’s a fast moving situation.
The officers get[] this dispatch, they are close. They immediately get to the scene and--
within a minute or two. So it’s pretty fast.
“They see someone who may be that person. They know that there’s a weapon
involved or could be a weapon involved, a crowbar, and so the officer stops the
defendant.
“So the question is: Is there . . . enough for a . . . Tony C. detention? I think the
answer is, yes, there is. Because the officer has information that this criminal activity is
going on and it appears that the defendant could be involved in it.
“The issue is not that he was involved in it beyond a reasonable doubt, but that . . .
there’s a reasonable likelihood that he was or even a reasonable possibility. I think it’s
one of the lowest standards in law to make a detention. And here I think the officer did
just what the officer should have done and what was reasonable. He had him stop.
“The next thing that happened was the defendant was patted down for weapons.
To make a [Terry v. Ohio (1968) 392 U.S. 1, at page 27 [20 L.Ed.2d 889, at page 909]
(Terry)] pat down, the officer has to have specific articula[t]able facts explaining why he
thinks the suspect might have a weapon.
“Well, here, number one, it was stated that he might have had a crowbar, but, more
importantly, at this point when Officer Pasquale came in contact with the defendant, he
saw a . . . metal clip and, in his experience, this metal clip is often connected to pocket
knives. So I think that that is adequate for the officer to make a stop or a frisk under []
Terry.
“And there is testimony to the effect that, ‘I want to search you,’ and the defendant
put up his hands and sort of a surrender position . . . I don’t think that this . . . can be
justified as a permissive search, but I think that the officer was justified under Terry [] in
patting the suspect down for weapons.
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“So he pats him down or the other officer pats him down and they find a gravity
knife, which is illegal. The defendant is arrested. Then they perform a search incident to
arrest and find suspected methamphetamine.
“So the next issue is what is the effect of the information that . . . both people
involved in this original disturbing the peace had left the scene, in fact. I would say that
if there was a significant amount of time that had gone by, that this . . . would mean that
the officer had no reason at all to detain the defendant or search him, much less search
[sic] him. But, here, because of the timeframe, the fact that it took place so quickly,
things were moving so quickly and the officer did not say that he was aware of this
information, that . . . the two people involved had left the scene. So . . . I can picture this
situation as being an excited time, a time of excitement, fast action, and I think that--what
should the officer do? The officer can’t just jump into something without thinking about
it, but here I think the officer did everything the officer should have done.
“The fact that apparently the suspect or the original suspect had left the scene, the
officer was unaware of. So, subjectively, the officer certainly had probable cause to stop
the defendant and frisk him and eventually search him.
“I don’t think the officer was . . . acting in bad faith at all. I think the officer was
acting in good faith. I think it’s a situation where events took place that if the officer
could have sat back and slowed down and went over all the dispatches before he did any
of this, maybe the officer would have said, ‘Well, this isn’t the man we were looking for,’
but he didn’t have that luxury. He had to operate with the facts as he had them. And,
under this set of facts, I think it’s appropriate for the officer to act the way he did.
“So I will deny the 1538 motion.”
DISCUSSION
On review of a ruling denying a motion to suppress evidence, we view the facts
most favorably to the respondent and uphold the trial court’s factual findings if supported
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by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673; People v. Watkins
(2009) 170 Cal.App.4th 1403, 1408.) However, we decide independently whether the
search or seizure was reasonable under the Fourteenth Amendment. (People v. Weaver
(2001) 26 Cal.4th 876, 924.)
Defendant contends his motion to suppress should have been granted because:
(1) Corporal Pasquale detained him without a warrant. (2) Corporal Pasquale “failed to
consider information that reduced suspicion of [defendant’s] involvement in criminal
activity”--i.e., information supposedly available to him when he arrived at 19 East
Whittier Avenue, which would have ruled out defendant as a suspect in the reported
altercation. (3) Corporal Pasquale detained defendant based on facts that did not raise an
objectively reasonable suspicion of defendant’s involvement in criminal activity.
(4) Defendant’s sex and race did not justify the detention. (5) Defendant’s attempt to
walk away from Corporal Pasquale did not justify the detention. (6) Corporal Pasquale
did not corroborate the information disclosed in the anonymous tip (i.e., the 911 call).
(7) The anonymous tip did not describe an ongoing public danger. (8) Defendant did not
consent to the seizure of his knife. (9) No circumstances attenuated the taint of the illegal
detention. We are not persuaded.
Defendant’s argument stands or falls on point 2: if that fails, the remaining points
are incorrect or immaterial. As we shall explain, point 2 improperly demands de novo
review of the trial court’s factual findings based on a detailed factual argument that was
not raised below, and misstates the amount of information reasonably available to
Corporal Pasquale at the relevant time. Reviewing the court’s factual findings in light of
the evidence presented and the arguments made at the hearing, we conclude substantial
evidence supports the finding that Corporal Pasquale could not have heard and processed
all the exonerating information defendant now relies on.
For the first time on appeal, defendant offers a blow-by-blow account of events up
to the moment he started walking away from the officers, trying to prove that Corporal
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Pasquale heard but inexplicably “ignored” information that would have ruled out
defendant as a suspect in the reported crime.
But even assuming the contention is properly raised now, it is unpersuasive. Some
information defendant cites does not appear to have been broadcast timely, or at all. As
for the rest, defendant does not convincingly explain why the trial court could not
properly have credited Corporal Pasquale’s testimony that he and his fellow officers
could not take in all the incoming information while simultaneously dealing with the
situation in front of them.
Defendant starts with the obvious: the officers went to East Whittier Avenue
instead of West Whittier Avenue. However, where they went was only a block from the
reported site, reachable by a single wrong turn, with address numbers that corresponded
to those on the right block. On arriving, they saw a parked white sedan with two persons
standing beside it in the street, who at first sight could have been a man and a woman--all
consistent with the dispatch. Rushing to respond to an emergency call that suggested
imminent physical danger to the victim, the officers could easily have missed or misheard
the word “West” while they focused on locating the reported address number and finding
out what was going on. Their mistake does not show that Corporal Pasquale willfully
disregarded evidence exonerating defendant.
Defendant asserts that dispatcher Herrera described the male suspect as wearing a
T-shirt and shorts, not the “pants and a dark shirt” worn by defendant, at 2:26:45 p.m.,
“over five minutes prior to an officer’s first report of contact with Lamar” and “well
before Pasquale saw” defendant. This evidence does not establish that Corporal Pasquale
heard and ignored anything tending to exonerate defendant. Herrera’s 2:26:45 p.m.
statement did not give any colors for the suspect’s clothing. And the officers’ “first
report of contact with Lamar”--i.e., calling in his name, which they did not know to begin
with--could not have been made until a substantial time after they arrived at the scene;
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thus, the fact that “over five minutes” separates Herrera’s dispatch from the officers’ call
tells us nothing helpful to defendant’s argument.
Defendant asserts that Corporal Pasquale relied on Herrera’s description of the
white sedan parked at the scene, but ignored his description of the male suspect’s
clothing, which was given at the same time. However, as defendant acknowledges, his
companion, Lamar, was wearing clothing that fit that description (shorts and a white
“wife-beater” T-shirt). In any event, Corporal Pasquale could reasonably have chosen to
focus on the parked car, which appeared to confirm the location, before trying to figure
out whether the descriptions of the persons involved in the alleged altercation precisely
matched the appearance of the persons on the scene, or which person, if either, was the
alleged perpetrator.
Defendant asserts that Corporal Pasquale ignored information broadcast by
Herrera at 2:27:29 p.m. that the alleged victim was wearing a black skirt and a gray shirt.
However, even assuming the officers heard that dispatch, they had no way of knowing
then whether the persons they had heard about were the only ones involved in the alleged
altercation.
Defendant asserts that Corporal Pasquale ignored information regarding the
location of the victim’s car. According to defendant, at 2:29:02 p.m., Herrera stated that
it had been left at 19 West Whittier Avenue, but the car the officers saw was at 32 East
Whittier Avenue. In fact, Herrera did not give any specific address in that dispatch. He
said only: “The vehicle is still there.”
Lastly, defendant asserts that Corporal Pasquale ignored Herrera’s dispatch at
2:29:02 p.m. that the suspect had driven from the scene in a silver, two-door car, heading
toward Holly Drive. Corporal Pasquale did not ignore this information. At 2:30:13 p.m.,
a speaker who could only have been Corporal Pasquale or his partner replied that the
officers had not seen that vehicle coming southbound on Holly Drive.
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In short, no evidence cited by defendant undermines the trial court’s finding that
the officers, while responding to a reported emergency, could not reasonably have been
expected to hear and process every discrete piece of information that came in at separate
times over the radio. But even if they had been able to do so, they had no way of
determining whether that information was complete and accurate other than to investigate
what they found on the scene as quickly as possible. Defendant’s 20/20 hindsight is not
the appropriate standard to apply to the question of whether the court’s finding was
supported by substantial evidence. We conclude that it was.
II
In light of the above discussion, we need not discuss at length the remaining
issues. As the trial court found, once the officers began to investigate the situation before
them, which looked like the situation to which they had been dispatched, defendant’s
attempt to flee gave Corporal Pasquale grounds to perform a Tony C. stop. The officers’
sighting of the metal clip in defendant’s pants pocket, his initially evasive response to
questioning about it, and his ultimate admission he was carrying a knife gave the officers
further reasonable suspicion of criminal activity, justifying a Terry search. Finally, the
discovery of an illegal switchblade knife on defendant’s person created probable cause to
arrest him. Defendant does not dispute that if those actions by the officers were lawful,
the search incident to arrest which discovered methamphetamine on his person was also
lawful.
The Tony C. Stop
After the officers, in full uniform, approached defendant (reasonably, if
mistakenly, thinking him a possible suspect in a recent crime), and he began to walk very
quickly away from them toward the front door of a house, disregarding two commands to
stop, while carrying an unidentifiable object in his closed hand, the officers had
objectively reasonable grounds for suspicion that he might be involved in criminal
15
activity, justifying a brief investigative detention. (Tony C., supra, 21 Cal.3d at pp. 892-
893; see also People v. Hernandez (2008) 45 Cal.4th 295, 299; People v. Souza (1994)
9 Cal.4th 224, 231-235 (Souza) [flight from police a proper consideration as to propriety
of detention, though not dispositive].) Even if the circumstances observed by the officers
might have had an innocent explanation, they could still give rise to reasonable suspicion
sufficient for a Tony C. stop. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146;
Souza, at p. 242.)
Defendant disagrees, relying on Tony C.; Williams v. Superior Court (1985)
168 Cal.App.3d 349 (Williams); People v. Durazo (2004) 124 Cal.App.4th 728 (Durazo);
and People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia). His reliance is
misplaced.
In Tony C., the officers detained the defendant while he was merely walking along
the sidewalk; they had no particularized basis for suspecting his involvement in any
crime, but only “a combination of hunch and curiosity.” (Tony C., supra, 21 Cal.3d at
pp. 896-898.) But here, the officers were responding to a 911 call made a very short time
before, and reasonably though mistakenly believed the persons they found at the scene
could have been the persons described in the dispatch. And defendant’s attempt to evade
the officers created further grounds for reasonable suspicion which were absent in
Tony C. (Souza, supra, 9 Cal.4th at p. 242.)
In Williams, the officer mixed up the descriptions of suspects in two different
dispatches to produce a “composite description” that appeared to match the defendants,
who were not doing anything illegal or suggestive of illegality when the officer detained
them; however, the officer’s “composite description” differed grossly from the actual
descriptions of the suspects in the prior dispatches. (Williams, supra, 168 Cal.App.3d at
pp. 360-362.) As we have shown in part I, the discrepancies between the descriptions of
the suspects given in the 911 call and the appearance of defendant and Lamar were not so
gross, and some of those discrepancies could not have been known to the officers because
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they were not broadcast over the radio or because the officers were already out of the car
investigating the scene.
In Durazo, the officer detained two young Hispanic males merely for apparently
looking toward an apartment complex where four days earlier a resident had claimed
Mexican gang members were going to attack him; as in the previous cases, the detained
persons did not do anything suggestive of criminal activity within the officer’s view.
(Durazo, supra, 124 Cal.App.4th at p. 738.) Here, the officers responded almost
immediately to a reported criminal assault and found people on the scene who, judging
from the initial information given to the officers, looked as though they could have been
involved in that assault.
Finally, in Perrusquia, the defendant was observed late at night in his car, running
his engine in the parking lot of a store in a high-crime area where there had been a string
of robberies; he was parked near the exit although there were available spaces closer to
the store; when an officer approached, the officer heard something in the car, and the
defendant tried to avoid contact with the officers. Nothing showed that the defendant
matched the physical description of the alleged robbers, and he was not seen doing
anything suggestive of criminal activity. (Perrusquia, supra, 150 Cal.App.4th at pp. 233-
234.) Here, there was a far more immediate (apparent) connection than in Perrusquia
between defendant and the alleged perpetrator reported in the 911 dispatch, and
defendant’s attempt to flee reinforced that suspicion.
The Terry Search
When an officer does not have probable cause to arrest, he may undertake a pat
down search only if he has reason to believe that he is dealing with an armed and
dangerous person, and the scope of the search must be confined to an intrusion
reasonably designed to discover hidden weapons that could be used to assault an officer.
(Terry, supra, 392 U.S. at p. 29 [20 L.Ed.2d at p. 911].)
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“The officer must be able to point to specific and articulable facts together with
rational inferences therefrom which reasonably support a suspicion that the suspect is
armed and dangerous.” (People v. Dickey (1994) 21 Cal.App.4th 952, 955-956.) But
where the officer can do so, “[t]he judiciary should not lightly second-guess a police
officer’s decision to perform a patdown search for officer safety. The lives and safety of
police officers weigh heavily in the balance of competing Fourth Amendment
considerations.” (Dickey, at p. 957.)
Here, the officers had specific and articulable facts to justify a Terry search, even
before defendant admitted possessing a knife on his person. They saw a metal clip in
defendant’s pants pocket. They knew from their training and experience that such a clip
can hold a concealed knife in place. When they asked him whether he was carrying any
weapons, he replied evasively that he was “not searchable.” At that point, they already
had sufficient grounds for reasonable suspicion that he was armed and dangerous.
Defendant offers no contrary argument. He contends only that his detention was
illegal and that he did not consent to the seizure of his knife. Since his detention was
legal and a Terry search was justified, his lack of consent is immaterial.
As previously noted, defendant does not argue that the officers lacked probable
cause to arrest him once they found the illegal knife, or that the subsequent search
incident to arrest which found the methamphetamine on his person was unlawful.
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DISPOSITION
The order denying defendant’s motion to suppress evidence, and, thus, his
conviction, is affirmed.
HULL , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
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