PEOPLE v. DOLLY (2005)

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

The PEOPLE, Plaintiff and Respondent, v. Norman J. DOLLY, Defendant and Appellant.

No. B169971.

Decided: May 03, 2005

Sally P. Brajevich, under appointment by the Court of Appeal, San Pedro, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In case No. YA052124, a jury convicted appellant Norman J. Dolly of one count of possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1).¹  In a bifurcated proceeding, the trial court found true the allegation that appellant had suffered a prior strike conviction.   The trial court sentenced appellant to the midterm of two years, doubled to four years because of the strike conviction.

In case No. YA046623, appellant's probation on a Health and Safety Code section 11359 ² violation was revoked after a hearing.   The court sentenced him to one-third the middle term of eight months, to be served consecutively to his sentence in case No. YA052124.

Appellant appeals on the grounds that:  (1) appellant's motion to suppress the gun found in the car should have been granted;  (2) the trial court should have excluded appellant's statements at the sheriff's station, which were made after an arrest warrant had been issued, under coercive circumstances, and without Miranda ³ warnings;  (3) the prosecution improperly used a peremptory challenge to exclude one African-American woman from the jury after the only other African-American had been excused for cause and no others remained on the jury;  (4) the prosecutor's misconduct during closing argument requires reversal of appellant's conviction;  and (5) under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely ), appellant's right to a jury trial was violated when the trial court imposed a consecutive eight-month term in case No. YA046623.

FACTS

Officer Frank Dominguez and his partner, Officer Goldstein, of the Los Angeles Police Department were on patrol on April 17, 2002, at approximately 3:30 p.m. when they received a radio call.   A redacted tape recording of the 911 call was played to the jury at appellant's trial.   The recording indicated that the caller had seen a man with a gun.   The radio call described a male Black with a light complexion and a bandage on his left arm sitting inside a Nissan Maxima, which was possibly gray.   The man had the gun in his pocket.   The caller said he did not want to be identified at the scene.   The caller telephoned again to say that the Nissan was black.

The officers arrived at the location described by the caller, Ninth Avenue and Jefferson Boulevard, in two to three minutes.   When he arrived, Officer Dominguez saw appellant seated in the driver's seat of a black Nissan Maxima.   Appellant wore a cast on his left arm. The officers conducted a felony stop by pulling behind the car and, with guns drawn, told the occupants to exit the car.   In addition to appellant, a front seat passenger and a rear passenger were inside the car.   Neither of the passengers wore a cast.   While the occupants were getting out of the car, two backup units arrived.   A search of the car yielded a loaded blue steel revolver, which was found under the front passenger seat.   Appellant was arrested, as was the front passenger (on a different charge).

Detective Delicia Hernandez of the Los Angeles County Sheriff's Department interviewed appellant at the Lennox sheriff's station on June 10, 2002.   Hernandez testified at appellant's trial that she asked appellant about the gun that was found on April 17, 2002, inside the car.   Although he initially denied having the gun, appellant stated “that he had, in fact, had possession of the gun at one time and that the gun had belonged to him.”   He said he bought it on the street through friends and had it at his home for safety reasons.   He said that, prior to the arrival of the police, he had given it to a man who was in the car with him.   Later in the interview, he said he had sold it to the man the evening before.   The interview was videotaped, and a transcript was prepared.   Portions of the transcript were read during the questioning of Hernandez.

DISCUSSION

I. Motion to SuppressA. Appellant's Argument

Appellant argues that the trial court committed reversible error in denying his motion to suppress the gun found inside the car as part of a warrantless search because the uncorroborated 911 call was not a valid basis to search the car, which was legally parked.

B. Proceedings Below

At the hearing on the motion to suppress, Officer Dominguez testified that he and Officer Goldstein responded to a radio call at Ninth Avenue and Jefferson Boulevard.   The call gave a description of a male Black wearing a cast on his left arm sitting “in a possible gray Nissan Maxima.”   The caller said the car was parked on the north side of the street.   When asked if the dispatcher told him how the caller knew that the male Black had a gun, Dominguez stated that the caller said he had been threatened with a gun.   Dominguez arrived at Ninth Avenue and Jefferson Boulevard within two or three minutes after the call and saw appellant sitting in the driver's seat of a black Nissan Maxima wearing a cast on his left arm.   The officers proceeded with the felony traffic stop, which led to the discovery of the gun as related in the facts section of this opinion.   Dominguez testified that the caller did not wish to be identified, and Dominguez was unaware if the caller was a male or female or where the call originated from.   He knew that the call was created at 3:20 p.m., and that he arrived a few minutes after that.   Unlike appellant, neither of the passengers had a bandage or cast.   After Dominguez concluded his testimony, the prosecutor entered the tape recording of the 911 call into evidence and played it for the court.

During argument, the defense relied on the case of Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (J.L.), which held that the police must have independent corroboration of an anonymous tip before a suspect can be detained for an investigatory Terry stop.⁴  (J.L., at pp. 270-272, 120 S.Ct. 1375.)   The trial court ruled that the issue of the anonymous tipster need not be reached because appellant had a search and seizure condition as a term of probation.

C. Relevant Authority

 “The standard of appellate review of a trial court's ruling on a motion to suppress is well established.   We 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.   [Citations.]”  (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

 The guiding principle for evaluating the actions of police officers is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”  (Terry, supra, 392 U.S. at p. 19, 88 S.Ct. 1868.)  “[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”  (Id. at p. 22, 88 S.Ct. 1868.)   There must be “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  (Id. at p. 21, 88 S.Ct. 1868 fn. omitted;  People v. Glaser, supra, 11 Cal.4th at p. 363, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

D. Motion to Suppress Properly Denied

 We first recognize, as does respondent, that the trial court's reason for justifying the search is invalid, since the responding officers were not aware of appellant's probation status or condition. After the ruling in this case, the California Supreme Court held in People v. Sanders (2003) 31 Cal.4th 318, 2 Cal.Rptr.3d 630, 73 P.3d 496 that an otherwise unlawful search of an adult parolee could not be justified by a parole search condition of which the police were unaware at the time of the search.  (Id. at p. 335, 2 Cal.Rptr.3d 630, 73 P.3d 496.)   Appellate courts have subsequently held that otherwise unlawful probation searches cannot be justified by a search condition when the officer is unaware of the individual's probation status.   (See People v. Hester (2004) 119 Cal.App.4th 376, 402-405, 14 Cal.Rptr.3d 377;  People v. Bowers (2004) 117 Cal.App.4th 1261, 1270-1271, 13 Cal.Rptr.3d 15.)

On appeal, as in the trial court, appellant relies on the aforementioned case of J.L., supra, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254.   In that case, the United States Supreme Court held that an anonymous tip communicated by telephone was insufficient justification for a temporary detention and patdown search.   The tipster in J.L. identified the person alleged to be carrying a gun only as a Black male in a plaid shirt at a particular bus stop.  (Id. at pp. 268, 274, 120 S.Ct. 1375.)

The entire summation of facts in J.L. was as follows:  “On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.  [ ] So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant.   Sometime after the police received the tip-the record does not say how long-two officers were instructed to respond.   They arrived at the bus stop about six minutes later and saw three black males ‘just hanging out [there].’  [ ] One of the three, respondent J.L., was wearing a plaid shirt.  [ ] Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct.   The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements.  [ ] One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.'s pocket.   The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing.”  (J.L., supra, 529 U.S. at p. 268, 120 S.Ct. 1375.)

In finding the search was invalid, the Supreme Court explained, “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.” (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   The Supreme Court distinguished J.L. from its prior decision in Alabama v. White (1990) 496 U.S. 325, 329-333, 110 S.Ct. 2412, 110 L.Ed.2d 301 (White ), where it held that there was sufficient corroboration of information provided by an unknown informant to permit a temporary detention.  (J.L., at p. 270, 120 S.Ct. 1375.)   The Supreme Court stated, “As we have recognized, ․ 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].  The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.  [¶] In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel.   [Citation.]  Standing alone, the tip would not have justified a Terry stop.  [Citation.]  Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.  [Citation.]  Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline.   Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband.   We accordingly classified White as a ‘close case.’  [Citation.]”  (J.L., supra, 529 U.S. at pp. 270-271, 120 S.Ct. 1375.)   The court stated that the tip in J.L. “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.”  (Id. at p. 272, 120 S.Ct. 1375.)

In People v. Saldana (2002) 101 Cal.App.4th 170, 123 Cal.Rptr.2d 763 (Saldana ), Division Four of this court followed J.L. and found that an uncorroborated anonymous tip was insufficient to justify the search and seizure of the defendant.  (Saldana, at p. 172, 123 Cal.Rptr.2d 763.)   In that case, a deputy sheriff was informed that an anonymous tipster calling from a pay phone had said that a gray Ford Taurus station wagon with a license ending in “319” was parked in a certain restaurant's parking lot, and the driver was carrying a gun and a kilo of cocaine.   The same report had been made from the same telephone to the San Gabriel Police Department 30 minutes earlier.   (Ibid.) The deputy located the wagon in the described parking lot and determined that Saldana was the registered owner.   He also ascertained that a person at Saldana's address was wanted on a misdemeanor warrant.   The deputy waited until he saw the defendant exit the restaurant and enter the station wagon, whereupon a felony stop was executed.  (Id. at p. 173, 123 Cal.Rptr.2d 763.)   Saldana denied there was a gun in his car.   Police found a plastic trash bag containing marijuana under one of the station wagon's seats, but no gun.  (Saldana, at p. 173, 123 Cal.Rptr.2d 763.)

The Saldana court stated that the defendant's case was like that of J.L. The tip was anonymous and contained no internal indicia of the basis for, or the reliability of, the information given by the tipster.   There was no predictive information susceptible to corroboration.   The corroboration of the car type and its location was not sufficient, since the criminal element of the tip was not corroborated.   In addition, the existence of the four-year-old warrant for a person with a different name than Saldana was not corroboration of the anonymous tip.  (Saldana, supra, 101 Cal.App.4th at p. 175, 123 Cal.Rptr.2d 763.)   The court concluded that the felony stop that led to the search of the wagon and seizure of the evidence was not justified because the tip was uncorroborated by any observations or information available to the deputies.  (Id. at p. 176, 123 Cal.Rptr.2d 763.)

 Although the instant case is also a close one, we discern sufficient differences between appellant's case and those of J.L. and Saldana, and we conclude that the search based on the anonymous tip was justified here.

First, unlike in J.L., there was an audio recording of the 911 call, which this court has heard.   During the tape, an obviously upset man told the 911 dispatcher that he had been threatened with a gun.   He said, “A guy just pulled a gun on me.   I want to remain anonymous,” and “He's not a police, he shouldn't be walking around here having fucking guns and pulling them on people.”   Furthermore, the fact that the call was made to the 911 emergency line is itself distinct from the situation in J.L. In that case, the anonymous caller merely telephoned the Miami-Dade police.   As stated in U.S. v. Terry-Crespo (9th Cir.2004) 356 F.3d 1170 (Terry-Crespo ), a 911 call is “entitled to greater reliability than a tip concerning general criminality because the police must take 911 emergency calls seriously and respond with dispatch․ Police delay while attempting to verify an identity or seek corroboration of a reported emergency may prove costly to public safety and undermine the 911 system's usefulness.   We do not believe that the Constitution requires that result.”  (Id. at p. 1176.)   In Terry-Crespo, as in the instant case, the 911 caller reported that a man had threatened him with a .45-caliber handgun three minutes earlier, and he described the suspect and the area in which the threat had occurred.  (Id. at p. 1172.)

 Additionally, as in Terry-Crespo, the call “evidenced first-hand information from a crime victim laboring under the stress of recent excitement.”  (Terry-Crespo, supra, 356 F.3d at p. 1176.)   Here, the urgency in the caller's tone was evident on the recording.   The caller said the man had a gun in his pocket, and “he just pulled it on me right now, man.”   He added that the man mentioned a gang name and he felt the man was going to shoot him “right there that minute.”   He said that he knew it was not right for him to “snitch” as far as the streets were concerned, but he was not from the area and had no one to defend him.   He did not want to talk to the police because “if they find out I am snitching they're gonna kill me around here.”   The caller called back to say he had driven by the car again to make sure it was still there, and he realized it was black rather than gray.   He reiterated that he wanted to remain anonymous, but he gave his name as “Drew.” Thus, the 911 caller in this case, like the caller in Terry-Crespo, sought immediate police assistance and gave a description of his assailant.  “[P]olice may ascribe greater reliability to a tip, even an anonymous one, where an informant ‘was reporting what he had observed moments ago,’ not stale or second-hand information.”  (Terry-Crespo, supra, at p. 1177;  see also Illinois v. Gates (1983) 462 U.S. 213, 233-234, 103 S.Ct. 2317, 76 L.Ed.2d 527 [in determining overall reliability of a tip, a deficiency in one factor may be compensated for by a strong showing in another-a detailed description of wrongdoing observed firsthand gives greater weight to an unknown informant's tip].)

Also different from J.L. is that the police response time to the tip is known, and it was very brief-two or three minutes.   In addition, the 911 caller explained how he knew the man had a gun. The man had threatened him with it, and the caller had feared for his life.   The basis of the informant's knowledge is a relevant factor to be weighed in assessing whether the totality of the circumstances generates reasonable suspicion.  (White, supra, 496 U.S. at p. 329, 110 S.Ct. 2412.)   Moreover, the details of the car, its location, and the description of the man in the driver's seat, who had pulled the gun, were precise.   The caller stated the car was parked on the north side of Jefferson Boulevard at Ninth Avenue near the can recycling center.   He described the car as a gray Nissan Maxima.   He said that the person who pulled the gun was light-skinned, wore a bandage on his hand, and was in the driver's seat.   This information provided the police with specific, articulable facts that supported “ ‘a man of reasonable caution in the belief’ ” that the action he took was appropriate.  (Terry, supra, 392 U.S. at p. 22, 88 S.Ct. 1868.)

It is true that the caller in this case was unable to provide the predictive behavior that corroborated the illegality of the suspect's actions and that was deemed so important in White and J.L. We believe, however, that it would be unreasonable to require a person such as the caller here-who was a victim rather than an informant or tipster in the usual sense-to predict the future actions of the man who had pulled a gun on him, except to verify and tell police that the man was still sitting in the car.  (See J.L., supra, 529 U.S. at pp. 271-272, 120 S.Ct. 1375;  White, supra, 496 U.S. at pp. 331-332, 110 S.Ct. 2412.)   The caller, although he wished to be anonymous, had stayed in the area and driven by the Nissan again to verify the car was still where he had reported it to be.   As stated in U.S. v. Wheat (8th Cir.2001) 278 F.3d 722 (Wheat ), “[Alabama v.] White did not create a rule requiring that a tip predict future action, [citation], and neither did J.L. As we have previously acknowledged, ‘[s]uch a rule would be contrary to the line of cases holding that reasonable suspicion must be judged on the totality of the circumstances.’ ”  (Wheat, supra, at p. 734.)  Wheat went on to say that “an anonymous tip conveying a contemporaneous observation of criminal activity whose innocent details are corroborated is at least as credible as the one in White, where future criminal activity was predicted, but only innocent details were corroborated.” ⁵  (Wheat, at p. 735.)   As Justice Kennedy remarked in his concurring opinion in J.L., “a tip might be anonymous in some sense yet have certain features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”  (J.L., supra, 529 U.S. at p. 275, 120 S.Ct. 1375.)   Despite the lack of predictions, the tip in this case had “certain features” in support of its reliability, which made it more trustworthy and reliable than the anonymous tip in J.L.

 In addition, we note that the officers were justified in requiring the passengers to leave the car and lie on the ground while the car was searched in order to ensure the officers' safety.   An officer may conduct a limited, warrantless search for weapons on a detained individual if the officer has an objectively reasonable suspicion that the person is armed and dangerous.  (Terry, supra, 392 U.S. at p. 27, 88 S.Ct. 1868.)   The officer does not have to be “absolutely certain that the individual is armed;” the standard is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.  (Ibid.) The “danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car.”  (Maryland v. Wilson (1997) 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41.)   Here, there were specific, articulable facts provided by the informant, and the officers acted reasonably in extracting the occupants of the car as they did.

 Under the totality of the circumstances discussed ante, we affirm the trial court's denial of the suppression motion, although we base our conclusion on different grounds.   The “touchstone of the Fourth Amendment is reasonableness.”  (Florida v. Jimeno (1991) 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297.)   Reasonableness is in turn measured by balancing the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. (Maryland v. Buie (1990) 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276;  Terry, supra, 392 U.S. at pp. 20-21, 88 S.Ct. 1868.)   We conclude that the government's interest in tracking down the person who was armed with a gun and had threatened the caller with the gun was strong and outweighed the intrusion on the occupants of the car.   The intrusion caused by the police extracting the occupants of the car and searching the car was diminished by the fact that occupants of a car have a lesser expectation of privacy than occupants of a home.  “ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.   A car has little capacity for escaping public scrutiny.   It travels public thoroughfares where both its occupants and its contents are in plain view.’  [Citation.]”  (United States v. Knotts (1983) 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55.) The anonymous tip in this case provided sufficient justification for the investigative stop, and the detention and subsequent search did not violate the Fourth Amendment.

II.-V. **

DISPOSITION

The judgment is affirmed.

I respectfully dissent and conclude that appellant's motion to suppress should have been granted.   I believe that the Supreme Court opinions in Alabama v. White (1990) 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (White ) and Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (J.L.) compel reversal.   Even under a “totality of the circumstances” view of this case, the fact remains that there was no corroboration of the criminality alleged in the anonymous tip.

The J.L. court harked back to its decision in White and reiterated that the facts surrounding the stop based on an anonymous tip in White presented a “ ‘close case.’ ”  (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   In White, the court explained that the telephonic tip standing alone provided no basis for concluding that the caller was honest or that his information was reliable, and it gave no indication of the foundation of the caller's predictions regarding White's criminal activities.  (White, supra, 496 U.S. at p. 329, 110 S.Ct. 2412.)   A finding of reasonable suspicion of criminal activity was justified only because the police had independently corroborated the information (the predicted activities) by the time they stopped White's car.  (Id. at p. 331, 110 S.Ct. 2412.)   The court stated it was important that the tip contained details not only of easily obtained facts, but also of future actions not easily predicted.  (Id. at p. 332, 110 S.Ct. 2412.)   This demonstrated that the caller had inside information, and it was reasonable for police to believe that a person with access to such information is likely to have access to reliable information about the suspect's illegal activities as well.  (Ibid.) The police verification of the predictions showed that the caller was honest and well-informed to a degree sufficient to justify a stop.   (Ibid.)

In J.L., on the other hand, the caller “provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility.”  (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   The court reiterated that the reliability needed for a justifiable investigative stop requires more than an accurate description of the subject and his location.  (Id. at p. 272, 120 S.Ct. 1375.)  “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.”   (Ibid.)

The tip in the instant case is similar to the one transmitted in J.L. As in J.L., the caller was an “unknown, unaccountable informant.”  (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   Neither his honesty nor the reliability of his information was corroborated in any significant way.   The caller was unwilling to put his anonymity at risk and could “lie with impunity.”  (Id. at pp. 275, 276, 120 S.Ct. 1375 (conc. opn. of Kennedy, J.).)   Although the police were able to corroborate the location and description of appellant as provided in the tip, there was no basis for concluding that the tip was reliable in its “assertion of illegality.”   (J.L., supra, 529 U.S. at p. 272, 120 S.Ct. 1375.)   There was no predictive information, or any other information, with which the police could “test the informant's knowledge or credibility.”  (Id. at p. 271, 120 S.Ct. 1375.)

None of the factors the majority regards as distinguishing this case from J.L., such as the urgency in the caller's tone of voice or the fact the call was tape recorded, amount to corroboration in any way.   It goes without saying that the fact that a gun was actually found in the car is not corroboration for the initial stop and search.  (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   The police were able to corroborate only the information anyone on the street could have observed.   The Supreme Court has stated in J.L. that more is required;  specifically, some means of corroborating either the informant's credibility or his knowledge of the illegal activity.  (Id. at pp. 271-272, 120 S.Ct. 1375.)

Applicable to the instant case is the assessment of J.L. that, “[i]f White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.”  (J.L., supra, 529 U.S. at p. 271, 120 S.Ct. 1375.)   I conclude that the anonymous tip in this case did not provide sufficient justification for a lawful investigative stop.  (Id. at p. 272, 120 S.Ct. 1375.)   Therefore, appellant's detention and the subsequent search and seizure violated the Fourth Amendment and the trial court erred in denying appellant's motion to suppress.

FOOTNOTES

1.   All further references to statutes are to the Penal Code unless stated otherwise.

2.   Health and Safety Code section 11359 prohibits the possession of marijuana for sale.

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ).

4.   Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Terry ).

5.   In Wheat, the district court's denial of a motion to suppress was affirmed in a case where an anonymous motorist called 911 to report erratic driving, and the suspect's car was stopped by a police officer who had not observed any incidents of erratic driving.  (Id. at pp. 724-725.)   Wheat was a passenger in the car and was charged with possession of cocaine with intent to distribute.   He moved to suppress the evidence based on the claim that the anonymous 911 call could not give rise to reasonable suspicion sufficient to justify the stop.  (Id. at p. 726.)

FOOTNOTE.   See footnote *, ante.

BOREN, P.J.

I concur:  ASHMANN-GERST, J.