PEOPLE v. RODGERS

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Otis Lee RODGERS, Defendant and Appellant.

No. E034205.

Decided: August 18, 2005

Mark S. Devore, under appointment by the Court of Appeal, Irvine, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gill P. Gonzalez, Supervising Deputy Attorney General, and Stacy A. Tyler, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

I. INTRODUCTION

Defendant was convicted by a jury of assault with a firearm (Pen.Code, § 245, subd. (a)(2);  count 1),1 possession of a firearm by a convicted felon (§ 12021, subd. (a)(1);  count 2), possession of ammunition by a convicted felon (§ 12316, subd. (b)(1);  count 3), and making criminal threats (§ 422;  count 4).   The jury also found true certain enhancement allegations and the court found true two prison priors allegations. (§§ 667.5, 12022.5, subd. (a)(1), 1192.7, subd. (c)(8) & 12022.1.)   Defendant was sentenced to a total of 16 years in prison.

In the published portion of this opinion, we consider whether police, acting on information provided by an anonymous tipster, were justified in stopping defendant as he was driving out of an apartment complex at 3:45 a.m. We hold that the stop was justified.   While the officer made no observation that an occupant of the car was involved in criminal activity, he did make observations consistent with the anonymous tip.   This consistency, in conjunction with an anonymous tip that concerned ongoing criminal conduct posing an imminent serious threat to human life, was sufficient to justify the present stop.   In the unpublished portion of the opinion, we reject defendant's other contentions.   We affirm the judgment.

II. MOTION TO SUPPRESS EVIDENCE

A. Facts Presented at Motion to Suppress Hearing

Prior to trial, defendant moved to suppress evidence obtained in a search of his car.   At the hearing on the motion to suppress, Riverside County Sheriff's Deputy Gary Bowen testified that he was on patrol at approximately 3:41 a.m. in the Rubidoux area of Riverside County.   He received a call from dispatch indicating that a Black male and Black female were in a red sedan in the driveway area of the Garden Estates Apartments.   The dispatcher told Bowen that the caller stated that she heard the male say that he was going to shoot and kill the female.

Neither the recordings nor transcripts of the dispatch communication or the 911 call were submitted into evidence at the suppression hearing.   Although testimony at trial indicated that the police were able to identify the anonymous caller from her cell phone number, there was no evidence introduced at the suppression hearing that the caller had been, or could have been, identified.   According to the court, the caller was “an anonymous informant.”

Bowen arrived at the apartment complex in a marked patrol unit about four minutes after he received the call.   As he entered the driveway going southbound, a red sedan was being driven northbound out of the driveway.   When asked how he got the sedan to stop, Bowen testified:  “I don't recall if my lights were on or not, but I did make contact with the driver.  [¶] ․ [¶] ․ I most likely indicated that I needed to-to talk with him.   I don't know if I ordered him to stop or if my lights were on at that point․ [¶] ․ [¶] ․ My vehicle was next to him facing the opposite direction.   I most likely had my spotlight on the vehicle.”   Bowen pulled just past the driver's door of the red sedan, stopped, and exited his vehicle.

Bowen saw a male driving the car and a female in the front passenger seat.   The female was crying.   Bowen did not notice any marks on her.   He informed the driver that he had been called to the location in reference to a disturbance.   Upon inquiring whether the occupants of the car were having a fight, the driver stated that they were having an argument.   Bowen had the driver step out of the car and patted him down for weapons;  none were found.   On cross-examination, when questioned as to why he asked defendant to get out of the car, Bowen stated:  “I was there to investigate a threat of life, and for officer safety protection[,] and to fully investigate, I would need to talk to the driver.”

Defendant was subsequently placed in the backseat of Bowen's patrol car.   Bowen questioned Mrs. Rodgers, who gave consent to search the car.   The search yielded a gun and ammunition in the sedan's trunk.

B. Analysis of Stop and Detention

 Defendant contends that the trial court erred in denying his motion to suppress evidence.   Relying primarily on Florida v. J.L. (2000) 529 U.S. 266 [120 S.Ct. 1375, 146 L.Ed.2d 254] (J.L.), defendant argues that Bowen, acting on an anonymous tip, did not have a justifiable basis for the initial stop of the defendant's car prior to Bowen's observation of the occupants of the car.2  He contends that the anonymous tip received by dispatch and communicated to Bowen was not sufficiently corroborated prior to the stop so as to provide a “reasonable suspicion” to stop and detain defendant.   He asserts that the stop violated the Fourth Amendment and, therefore, all subsequently seized evidence should have been suppressed.  (See, e.g., Wong Sun v. United States (1963) 371 U.S. 471, 484 [83 S.Ct. 407, 9 L.Ed.2d 441].)

 The Fourth Amendment protects against “unreasonable searches and seizures.”  (United States v. Sharpe (1985) 470 U.S. 675, 682 [105 S.Ct. 1568, 84 L.Ed.2d 605].)   An investigatory stop of a motor vehicle implicates the Fourth Amendment “even though the purpose of the stop is limited and the resulting detention quite brief.  [Citations.]  The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order ‘ “to safeguard the privacy and security of individuals against arbitrary invasions․” ’ [Citation.]   Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.''  (Delaware v. Prouse (1979) 440 U.S. 648, 653-654 [99 S.Ct. 1391, 59 L.Ed.2d 660];  see also United States v. Terry-Crespo (9th Cir.2004) 356 F.3d 1170, 1176.) Whether law enforcement conduct is reasonable depends upon the totality of the circumstances surrounding the search and seizure.  (United States v. Drayton (2002) 536 U.S. 194, 207 [122 S.Ct. 2105, 153 L.Ed.2d 242];  People v. Reyes (1998) 19 Cal.4th 743, 750, 80 Cal.Rptr.2d 734, 968 P.2d 445.)

 In reviewing a trial court's ruling on a motion to suppress evidence, “[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence.   In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.”  (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

In J.L., the Supreme Court held that an uncorroborated anonymous tip alleging the illegal possession of a firearm, lacking moderate indicia of reliability, will not justify a stop and frisk by police.  (J.L., supra, 529 U.S. at p. 274, 120 S.Ct. 1375.)   There, police received an anonymous call which reported that a young Black male wearing a plaid shirt was at a particular bus stop and that he was carrying a gun.   From the record before the court, nothing was known about the informant.   Officers arrived at the bus stop about six minutes later.   The officers observed three Black males, one wearing a plaid shirt.  “Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct.”  (Id. at p. 268, 120 S.Ct. 1375.)   One of the officers approached J.L.-the male wearing the plaid shirt-and told him to put his hands up on the bus stop.   A frisk yielded a gun in J.L.'s pocket.   He was subsequently charged with carrying a concealed weapon and possessing a firearm while under the age of 18.  (Id. at pp. 268-269, 120 S.Ct. 1375.)

In affirming the state court's suppression of the gun, the Supreme Court stated:  “In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller.   Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation] ‘an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity’ [citation].”  (J.L., supra, 529 U.S. at p. 270, 120 S.Ct. 1375.)   The court recognized, however, that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’  [Citation.]”  (Ibid.)

The State of Florida argued that the tipster's accurate description of the location and the defendant's clothes provided sufficient indicia of reliability.   The court disagreed, stating:  “An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense:  It will help the police correctly identify the person whom the tipster means to accuse.   Such a tip, however, 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.”  (J.L., supra, 529 U.S. at p. 272, 120 S.Ct. 1375.)

In discussing the need for corroboration, the J.L. court distinguished Alabama v. White (1990) 496 U.S. 325 [110 S.Ct. 2412, 110 L.Ed.2d 301] (White ), which upheld a stop and detention following an anonymous tip.   In White, an anonymous informant told police that a woman carrying cocaine would leave an apartment building at a specific time and drive a described vehicle to a named motel.  (Id. at p. 327, 110 S.Ct. 2412.)   The police saw a woman leave the apartment building and enter a vehicle matching the informant's description, which then drove straight to the named motel.   (Ibid.) The J.L. court explained that in White, after the officers observed that the informant had accurately predicted the woman's movements, “it bec[a]me reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.”  (J.L., supra, 529 U.S. at p. 270, 120 S.Ct. 1375.)   In J.L., by contrast, “[t]he tip ․ lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case.   The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility․ 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 J.L.” (Id. at p. 271, 120 S.Ct. 1375.)

In his concurring opinion, Justice Kennedy further addressed the need for indicia of reliability for anonymous tips.  “If the telephone call is truly anonymous,” he noted, “the informant has not placed his credibility at risk and can lie with impunity.   The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable.”  (J.L., supra, 529 U.S. at p. 275, 120 S.Ct. 1375 (conc. opn. of Kennedy, J.).)   While the predictive information provided by a tipster, such as in White, was one means of corroborating a tip, Justice Kennedy pointed out that “there are many indicia of reliability respecting anonymous tips․” (J.L., supra, at p. 274, 120 S.Ct. 1375.)   He explained further, “a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”  (Id. at p. 275, 120 S.Ct. 1375.)   In J.L., however, there were no such features.  (Id. at pp. 275-276, 120 S.Ct. 1375.)

Here, Bowen observed a red car at the location identified by the tipster.   Although Bowen had not, at that point, observed any criminal activity, the fact that the caller correctly identified the location of the red car and overheard the man's threatening words indicates that the anonymous caller was close enough to have first-hand knowledge of the reported criminal conduct just prior to the officer's arrival.   This is a feature that “narrow[s] the likely class of informants” to someone in or near the parking lot (J.L., supra, 529 U.S. at p. 275, 120 S.Ct. 1375 (conc. opn. of Kennedy, J.)), and “demonstrates the informant's basis of knowledge or veracity” (id. at p. 270, 120 S.Ct. 1375;  see also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, 941, 28 Cal.Rptr.3d 912 [the caller's information demonstrated that he had been an eye witness to the accused's unlawful activity].)   Moreover, the short time interval between the tip and the officer's appearance on the scene supports the reliability of the tip.  (See United States v. Wheat (8th Cir.2001) 278 F.3d 722, 731 (Wheat ).)   These facts provide some foundation as to the tipster's credibility and reduces the “risk of fabrication.”  (J.L., supra, at p. 275, 120 S.Ct. 1375 (conc. opn. of Kennedy, J.).)   Nevertheless, such facts indicate little more than the tip that was at issue in J.L. As we explain, however, J.L. is distinguishable because, unlike the possessor of the gun in J.L., the alleged wrongdoer here had threatened to shoot and kill someone and was apparently leaving the scene in a moving vehicle.

Significantly, the facts in J.L. did not present an ongoing emergency situation or any immediate endangerment to life.   According to the tip, the boy in the plaid shirt was allegedly carrying a gun;  there was no allegation that he had threatened to kill someone or otherwise presented an imminent danger to anyone.   The J.L. court stated that it would not “speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability.”  (J.L., supra, 529 U.S. at p. 273, 120 S.Ct. 1375.) 3

In United States v. Holloway (11th Cir.2002) 290 F.3d 1331 (Holloway ), the court was faced with the kind of dangerous allegations by an anonymous tipster the J.L. court declined to “speculate about.”   In Holloway, an anonymous 911 caller reported gunshots and arguing emanating from a certain residence.  (Id. at p. 1332.)   Two officers arrived at the residence shortly afterward and observed the appellant and his wife on the front porch of the home.  (Ibid.) There is nothing in the description of the facts that indicates the police observed the couple arguing or other activity that would confirm the tipster's information.   Nevertheless, upon arriving, one officer illuminated the house with his headlights and spotlight, drew his service weapon, and instructed the couple to raise their hands into view.   (Ibid.) Defendant complied, but his wife did not.  (Ibid.) The officer threatened to use pepper spray against the wife.   Eventually, another officer placed the wife under his control.  (Id. at pp. 1332-1333.)   After placing defendant into his patrol car, the officer noticed a shotgun and shotgun shells near where defendant had been standing when the police arrived.  (Id. at p. 1333.)   After the defendant was indicted for possession of a firearm by a convicted felon, he moved to suppress the shotgun and other evidence.

Rejecting the appellant's reliance on J.L., the Holloway court stated:  “A crucial distinction between J.L. and this case is the fact that the investigatory stop in J.L. was not based on an emergency situation․ [W]hen an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller.”   (Holloway, supra, 290 F.3d at pp. 1338-1339.)   The court further explained:  “Once presented with an emergency situation, the police must act quickly, based on hurried and incomplete information.   Their actions, therefore, should be evaluated ‘by reference to the circumstances then confronting the officer, including the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences.’   [Citation.]”  (Id. at p. 1339.)

The Holloway court found that the seizure and subsequent search of the residence was lawful:  “[T]he warrantless search of Appellant's residence was based largely on information provided by an anonymous caller.   However, the information given by the caller involved a serious threat to human life.   Furthermore, the information concerned an on-going emergency requiring immediate action.   In light of the nature of the 911 call, a lesser showing of reliability than demanded in J.L. was appropriate in order to justify the search of Appellant's home.   Because the police had no reason to doubt the veracity of the 911 call, particularly in light of the personal observations of the officers once they arrived on the scene, their warrantless search for victims was constitutional.”  (Holloway, supra, 290 F.3d at p. 1339, fn. omitted.)   As for the initial actions taken to obtain control over the defendant and his wife upon their arrival, the anonymous reports of gunshots gave the officers “reasonable cause to believe they were entering a volatile and potentially dangerous situation.”  (Id. at p. 1340.)   Their actions to “temporarily secure[ ]” the individuals were therefore justified.  (Id. at pp. 1340-1341.)

A dangerous situation also distinguished J.L. from the facts in People v. Coulombe (2000) 86 Cal.App.4th 52, 102 Cal.Rptr.2d 798.   There, two unidentified citizens, 5 to 10 seconds apart, approached deputies about 11:00 p.m. on New Year's Eve;  each indicated that a man wearing a white hat had a gun in a nearby restaurant.   The deputies approached the location and observed a man in a white hat seated in a wheelchair.   Both deputies approached simultaneously.   One of them explained why they were there.   About this time, the man in the white hat reached toward his pant's side pocket.   A deputy placed his hand over the man's hand, and extracted a small revolver from his pocket.   The trial court granted defendant's motion to suppress based on J.L. (People v. Coulombe, supra, at pp. 54-55, 102 Cal.Rptr.2d 798.)   The appellate court reversed.   In distinguishing J.L., the court stated:  “The circumstances under which defendant was alleged to possess a firearm were markedly different than those in [J.L.]-the possession occurred not at a bus stop with only two of the suspect's friends present, but rather in a throng of thousands of New Year's Eve celebrants.   The danger presented was thus much increased.”  (People v. Coulombe, supra, at p. 58, 102 Cal.Rptr.2d 798.)   Under these circumstances, the situation was “sufficiently dangerous so as to require less reliability than that required in [J.L.].” (Id. at p. 59, 102 Cal.Rptr.2d 798.) 4

The applicability of J.L. to a situation involving a moving vehicle was addressed in Wheat, supra, 278 F.3d 722.  Wheat involved an anonymous cell phone call to police about the dangerous operation of a vehicle and an investigatory stop by an officer who did not observe any erratic driving or unlawful activity.  (Id. at p. 729.)   The Wheat court distinguished the gun possession situation presented in J.L. from its facts, explaining:  “An erratic and possibly drunk driver poses an imminent threat to public safety.   [Citation.]  Of course, arguably so too does a citizen armed with a gun, yet the Supreme Court firmly declined to adopt an automatic firearm exception to the reliability requirement on that basis.  J.L., [supra,] 529 U.S. at [page] 272[, 120 S.Ct. 1375].   However, there is a critical distinction between gun possession cases and potential drunk driving cases.   In the possessory offense cases, law enforcement officers have two less invasive options not available to officers responding to a tip about a drunk driver.   First, they may initiate a simple consensual encounter, for which no articulable suspicion is required.  [Citation.]  Needless to say, that is not possible when the suspect is driving a moving vehicle.  [¶] Alternatively, officers responding to a tip about a possessory violation may quietly observe the suspect for a considerable length of time, watching for other indications of incipient criminality that would give them reasonable suspicion to make an investigatory stop․ By contrast, where an anonymous tip alleges erratic and possibly drunk driving, a responding officer faces a stark choice․ [H]e can intercept the vehicle immediately and ascertain whether its driver is operating under the influence of drugs or alcohol.  [Citation.]  Or he can follow and observe, with three possible outcomes:  the suspect drives without incident for several miles;  the suspect drifts harmlessly onto the shoulder, providing corroboration of the tip and probable cause for an arrest;  or the suspect veers into oncoming traffic, or fails to stop at a light, or otherwise causes a sudden and potentially devastating accident.  [Citation.]  In contradistinction to J.L., where the suspect was merely standing at the bus stop, in this context the suspect is extremely mobile, and potentially highly dangerous.  [Citation.]  Thus, we think that there is a substantial government interest in effecting a stop as quickly as possible.”  (Wheat, supra, 278 F.3d at pp. 736-737, fn. omitted.) 5

The present case is distinguishable from J.L. for reasons similar to those in Holloway, People v. Coulombe, and Wheat.   Like the possible drunk driver in Wheat, the suspect here was “extremely mobile, and potentially highly dangerous.”  (Wheat, supra, 278 F.3d at pp. 737.)   Like the officer in Holloway, Bowen had no reason to doubt the veracity of the tipster (who had correctly described the location of the red sedan and was within earshot of the alleged threats) and could reasonably believe he was “entering a volatile and potentially dangerous situation.”  (Holloway, supra, 290 F.3d at p. 1340.)   Not only was the situation potentially far more dangerous than the situation in J.L., but Bowen could not engage in a consensual encounter with the suspect prior to the stop-an option that was available to the police in J.L.

Bowen, like an officer responding to a tip about erratic driving, “face[d] a stark choice” as he pulled up to the moving red sedan.   He could stop the vehicle long enough to determine whether there were facts corroborating the tipster's report of criminal activity;  or he could decline to stop the vehicle, allowing it to proceed out of the parking lot.   If Bowen had not stopped the vehicle, the driver may well have carried out the alleged threat once he was safely away from the police.   The danger presented by the tipster's report and the fact that the potential perpetrator was then driving the vehicle away from the scene not only distinguishes the present case from J.L. but gives rise to a strong governmental interest in effecting an investigatory stop of the vehicle.   Further distinguishing this case from J.L., the brief stop of defendant's vehicle and observation of the occupants in this case was less of an interference with defendant's Fourth Amendment interests than the frisk on the public street that was at issue in J.L.

In sum, the exigent circumstances here distinguish this case from J.L. The government's interest in effecting a brief investigatory stop outweighed the intrusion on the defendant's Fourth Amendment interest.   Based upon our review of the totality of the circumstances presented at the suppression hearing, we conclude that Bowen was justified in making the initial stop to determine whether additional facts existed to further corroborate the anonymous caller's tip that defendant was involved in criminal conduct that posed an imminent threat to safety.   Accordingly, the motion to suppress evidence was properly denied.

III.-IV.**

V. DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Defendant does not challenge the actions the police took after Bowen observed that the occupants of the car were a Black male and a Black female, and that the female was crying, except to the extent that these actions followed the initial, allegedly unjustified, stop.

3.   Similarly, two published California Court of Appeal decisions that relied upon J.L. to reverse trial court orders denying motions to suppress did not involve any exigent circumstances.  (See People v. Jordan (2004) 121 Cal.App.4th 544, 17 Cal.Rptr.3d 157;  People v. Saldana (2002) 101 Cal.App.4th 170, 123 Cal.Rptr.2d 763.)   In both cases, the courts found the facts presented to be essentially indistinguishable from J.L. (Jordan, supra, at p. 562, 17 Cal.Rptr.3d 157;  Saldana, supra, at p. 175, 123 Cal.Rptr.2d 763.)

4.   We note that the California Supreme Court has granted review of People v. Wells (2004) 122 Cal.App.4th 155, 18 Cal.Rptr.3d 605, review granted December 15, 2004, S128640, and People v. Dolly (2005) 128 Cal.App.4th 1354, 27 Cal.Rptr.3d 638, review granted August 10, 2005, S134505.   The People v. Wells, supra, case presents the following issue:  “Does an anonymous tip that a driver of a motor vehicle appears to be driving under the influence afford reasonable suspicion to support a police officer's stopping of the vehicle, where the information given by the anonymous informant cannot be corroborated except as to facts (e.g., the description of the vehicle at the designated location) that do not themselves point to any criminal activity?”  (Supreme Court Summary of Cases Accepted During the Week of Dec. 13, 2004.)   In People v. Dolly, supra, the issue presented for review is whether “an anonymous tip to police that a specific suspect possesses a gun [can] provide reasonable suspicion for a felony stop, where the police corroborate the innocent details of the tip, but do not corroborate the assertion of illegality.”   (Supreme Court Summary of Cases Accepted During the Week of Aug. 8, 2005.)

5.   Wheat was recently followed by the Second District Court of Appeal in Lowry v. Gutierrez, supra, 129 Cal.App.4th at pp. 936-941, 28 Cal.Rptr.3d 912.

FOOTNOTE.   See footnote *, ante.

KING, J.

RICHLI, Acting P.J., and GAUT, J., concur.