People v. PERRUSQUIA , 150 Cal. App. 4th 228 ( 2007 )

Opinion

MOORE, J.

In the trial court, defendant Oscar Humberto Perrusquia filed a motion to suppress under Penal Code section 1538.5.¹ He argued the police officer did not have reasonable suspicion to detain him and conduct a patdown search. After granting the motion, the trial court dismissed the case. The Orange County District Attorney (district attorney) appeals, arguing the police officer lawfully detained defendant. We agree with the trial court that the officer lacked specific, articulable facts justifying the detention and affirm the judgment and subsequent dismissal:

I

.FACTS

On January 13, 2006, Anaheim Police Officer Ryan Tisdale was on patrol near the comer of Harbor and La Palma. A 7-Eleven convenience store was located near that intersection, and Tisdale intended to stop there for a cup of coffee. Earlier that day at roll call, Tisdale and fellow officers had been briefed by detectives about a series of six armed robberies at 7-Eleven stores in Anaheim. The description provided was of a Black or Hispanic male in his late 20’s. The detectives wanted the patrol officers to do patrol checks and keep their eyes on 7-Eleven stores because they had been hit so often.

Further, based on his prior experience, Tisdale knew the area around that particular 7-Eleven was a high-crime area. During his patrols, he had had contacts in the area relating to assault with a deadly weapon and drug complaints. He also knew that numerous gangs were tied to the area, and he had frequently worked with gang detectives in the area during his patrol hours.

Tisdale entered the 7-Eleven’s parking lot at approximately 11:26 p.m. He noticed defendant’s car as he entered the lot. It was parked facing La Palma, next to the exit. The car caught his attention because there were other spots available closer to the store’s entrance, and someone was inside with the engine idling.

Tisdale stood behind the car and watched defendant. He could see defendant crouched low in the driver’s seat. Defendant was leaning against the glass and Tisdale felt it looked suspicious. After 45 seconds or so, a second officer pulled into the lot and joined Tisdale, and they continued observing defendant. Defendant had not moved during this time. The two officers then began approaching, and as they reached the rear of defendant’s car, Tisdale heard what he described as “kind of like a fumbling.” He then heard what he believed to be something dropping to the floor of the car with a “thud.”

Tisdale saw defendant look at him in the car’s side mirror, and at that point defendant turned the car’s engine off. Defendant exited the vehicle, and “aggressively, quickly” tried to pass Tisdale. Defendant was wearing baggy jeans and an untucked, long-sleeved baggy shirt. Tisdale asked defendant what was going on, and defendant replied to the effect that he was going to the. store. Tisdale asked defendant to “hang on a second.” Tisdale asked for identification, and defendant appeared agitated. Defendant asked: “What’s going on? I am just going to the store, I am just going to the store,” and Tisdale again asked for identification. Defendant retrieved his identification from the car, and Tisdale asked if he had any weapons. Defendant said he did not, and Tisdale asked if he could do a “quick pat-down search for weapons” and defendant answered no. Tisdale could not tell if defendant was armed without the patdown search. He repeated that he needed to do a quick patdown search, and defendant again answered no and started to walk away, not back to his car or toward the store, but to the adjacent street.

At that point, the other officer, who had been standing back while Tisdale was talking to defendant, intervened and both officers took hold of defendant’s arms and wrists. After Tisdale took defendant’s right wrist, he touched defendant’s waistband and immediately felt the handle of a gun. Tisdale pulled out the gun, a loaded nine-millimeter automatic, and dropped it on the ground. He then moved defendant toward a grassy area in front of defendant’s car and he and the other officer .took defendant to the ground.

After defendant was handcuffed, Tisdale asked if he had any other weapons on him, and defendant answered yes. - Defendant said he had an additional revolver in his waistband, and Tisdale retrieved a loaded .22-caliber gun. Tisdale then conducted an additional search for other weapons and called gang detectives. A subsequent search through defendant’s pockets revealed a small bag containing a substance that appeared to be methamphetamine and a glass smoking pipe.

Defendant was charged with two counts of having a concealed firearm in a vehicle (§ 12025), one count of possessing a controlled substance with a firearm (Health & Saf. Code, § 11370.1), one count of possessing a controlled substance (Health & Saf. Code, § 11377) and two counts of carrying a loaded, unregistered firearm in public (§ 12031). Defendant moved to suppress the evidence pursuant to section 1538.5.

At the conclusion of the hearing, the magistrate granted the motion. The court stated: “[T]he test being were the officers . . . able to articulate specific facts from which an ordinary person would believe that a crime has been or is about to be committed, that basically this situation here would lead an ordinary officer under the circumstances to a common sense belief that this is something he should look at and investigate and should the circumstances have worked out different where the defendant didn’t at some time exercise his right not to talk to the officers, the argument would then be that the show of authority was insufficient to have caused his submission and this is consensual. [][] On these circumstances here, he did exercise his option at the time to not consensually remain and at the time, while the officers may have had a hunch that something was going on and justifiably wanted to talk to him about it further, they cannot state an articulable set of facts which would lead a reasonable person to believe that a crime was being committed or was about to be committed so therefore the laying on of hands at that time was without reasonable cause and so the motion was granted.” Given that the motion was granted, the district attorney was unable to proceed, and the court dismissed the case.

II

DISCUSSION

The district attorney now appeals from the trial court’s decision to grant defendant’s 1538.5 motion. “An appellate court’s review of a ruling on such a motion is governed by well-settled principles: We defer to the trial court’s findings of fact that are supported by substantial evidence, but in all other respects the court’s ruling is subject to independent review. [Citation.]” (People v. Britton (2001) 91 Cal.App.4th 1112, 1118 [111 Cal.Rptr.2d 199].)

“[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal.Rptr. 366, 582 P.2d 957].) The key consideration, as with all Fourth Amendment issues, is “ ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” (21 Cal.3d at p. 892.)

An investigative stop, such as the one conducted by Tisdale, is valid if “the circumstances known or apparent to the officer . . . include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)

The United States Supreme Court, however, has specifically rejected a “divide-and-conquer” analysis in which individual facts are considered in isolation. (United States v. Arvizu (2002) 534 U.S. 266, 274 [151 L.Ed.2d 740, 122 S.Ct. 744].) Reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. [Citation.]” (Id. at p. 273.)

Reasonable suspicion, both sides agree, cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [145 L.Ed.2d 570, 120 S.Ct. 673].) Even recent, specific crimes, without additional factors specific to the defendant, are not sufficient. (In re Tony C., supra, 21 Cal.3d at p. 897.)

Many of the facts relied upon here are unrelated to defendant. There had been a recent string of robberies at 7-Eleven stores in Anaheim. The area in which this particular 7-Eleven was located was known as a high-crime area and for gang activity.

We consider the facts that are specific to defendant. When Tisdale arrived, he noticed defendant’s car because it was parked with the engine idling near a street exit and away from the store’s entrance, despite the fact that spaces closer to the store were available. As the officers approached defendant’s car, Tisdale heard what he described as “kind of like a fumbling” and a “thud” that might have been something dropping to the floor of the car.. When defendant noticed Tisdale and the other officer, he apparently tried to avoid contact with them, abruptly turning off the engine, and exiting the car. Tisdale asked defendant what was going on, and defendant stated that he was going to the store. Tisdale asked defendant to “hang on a second.”

Importantly, the district attorney conceded at oral argument that defendant was detained from the moment Tisdale said “hang on a second.” We might not have reached this conclusion, were we determining the issue independently, but we accept the district attorney’s concession. Thus, we look only to the facts prior to that point to determine whether the detention was reasonable.

In sum: Defendant’s car was running and parked near an exit, Tisdale heard something in the car as the officers approached, and defendant tried to avoid contact with the officers. The officers permitted defendant to retrieve his identification from his car, which is some indication they did not associate the thud they heard with danger. Nothing in the record indicates that Tisdale matched defendant’s physical appearance to the description of the robbers prior to the time he was detained. Even with the additional facts regarding the string of robberies, .we cannot disagree with the magistrate that the district attorney failed to show “specific facts from which an ordinary person would believe that a crime has been or is about to be committed . . . .”

Unlike several of the cases cited by the district attorney, here, the hour was not particularly late, and the store was, apparently, open. (Cf. People v. Holloway (1985) 176 Cal.App.3d 150 [221 Cal.Rptr. 394]; People v. Davis (1968) 260 Cal.App.2d 186 [67 Cal.Rptr. 54].) There were no immediately highly suspicious facts such as the flight of a defendant’s four companions. (People v. Holloway, supra, 176 Cal.App.3d at pp. 152-153.) Indeed, the district attorney does not cite any case where the facts are quite as thin and nonspecific as they are here.

The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention. As the trial court noted at the hearing’s conclusion: “[T]his is why police work is difficult, complex and challenging[,] because it’s difficult from a moral or practical standpoint to criticize the officer’s actions.” We agree, yet at the same time we also agree with the trial court that the facts did not meet the legal standard for a detention. The officer must have “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)

in

DISPOSITION

The judgment of dismissal is affirmed.

O’Leary, J., concurred.

1 Subsequent statutory references are to the Penal Code.