PEOPLE v. SHERMAN (1993)

OPINION

Based upon an outstanding warrant, defendant William C. Sherman was arrested.   The subsequent search of defendant revealed cocaine base.   In his motion to suppress this evidence, defendant argued that he was unlawfully detained at the time of his arrest.   His motion was denied.   Thereafter, he was convicted at trial by jury for violation of Health and Safety Code section 11351.5, possession of cocaine base for sale.   Defendant was sentenced to prison for a total term of eight years, which included enhancement terms for prior convictions.

Defendant appeals, claiming his motion to suppress should have been granted.   We affirm the judgment, except to order modification of the abstract of judgment to reflect credit for time defendant served prior to sentencing.¹

FACTS 2

On October 5, 1991, at approximately 11 p.m., Craig Mitchell of the tactical patrol unit of the Modesto Police Department accompanied other officers to 1105 Toulon Street in Modesto to investigate a drug hotline call.   Mitchell knew that the officers had received an anonymous tip over the drug hotline that crack, or cocaine base, was possibly being dealt out of the residence.   He was also aware that a suspected Black male parolee might be present at the premises.   Mitchell had been to the residence before on calls of suspected narcotics-related activity.

The 1105 Toulon residence was adjacent to a parking lot of a multiunit complex.   Officer Mitchell positioned himself at the back of the house in the area of the parking lot.   He was able to see over the fence and into the back yard from his position.

Mitchell noticed a light on in the back yard of the residence.   Upon closer observation, he saw a silhouette moving around in the back yard.   After approximately three minutes, the light went out.   Mitchell then saw a Black male walking around in the back yard.   Mitchell thought the man was evading contact with the other officers;  the man walked around the yard in a suspicious manner as if he did not wish to be seen.   When Mitchell radioed the officers positioned in the front of the house that the man in the back yard, later identified as defendant, was on the north side of the house, an officer shined his flashlight down the side of the house.   Defendant responded by ducking away in an evasive manner from the scope of the flashlight and remained in a position which prevented the officers in the front of the house from being able to see him.

Defendant then “jumped” over two different fences, crossing the adjacent back yard in the process.   The fences defendant jumped over were at least six feet tall and were perimeters of another person's property.   Finally, upon jumping the final fence and coming into the parking lot of the multiunit complex where Officer Mitchell was standing, defendant, unaware of Mitchell's presence, began to walk away from the area “quickly.”   Mitchell then ordered defendant to the ground and asked him why he was running.   Defendant responded that he had a warrant for his arrest.   After obtaining defendant's identification and running a warrant check, Mitchell determined defendant did, in fact, have a warrant for his arrest and took him into custody.   The search incident to defendant's arrest revealed that defendant was carrying 4.07 grams of a substance comprised partially of cocaine base.

Officer Mitchell testified that the reason he detained defendant was because “after I had observed all these things, I wasn't sure what was going on.   I knew there was a wanted person there.   I knew there was a suspicion of drug activity going on so I didn't know what this person's involvement was.”

The court denied the suppression motion based solely on the fact that defendant had trespassed in front of Officer Mitchell.

DISCUSSION

Defendant contends that Officer Mitchell detained him illegally, and thus all evidence flowing from the detention must be suppressed.   In support of this assertion, defendant claims the detention was invalid because Mitchell did not entertain the necessary articulable suspicion at the time he detained defendant, and the stop was predicated on a legally insufficient tip.

I.

Objective Standard

 Defendant's argument points to the question whether the suspicion required to justify a detention contains a subjective component or is determined by a purely objective test.   The California Supreme Court has stated a detention 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. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   Here, defendant claims it is not enough that the officer's actions were objectively reasonable in light of facts and circumstances confronting him at the time of the detention;  the detaining officer must have subjectively maintained the specific and articulable suspicion as his actual state of mind at the moment the action was taken.

Under federal law, a subjective suspicion is not required to justify a detention.   Rather, the court looks to the facts and circumstances surrounding the stop to determine whether it was based on articulable suspicion.

“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”  (Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168.)

 “Whether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time’ [citation], and not on the officer's actual state of mind at the time the challenged action was taken.”   (Maryland v. Macon (1985) 472 U.S. 463, 470–471, 105 S.Ct. 2778, 2782–2783, 86 L.Ed.2d 370;  quoting Scott v. United States, supra, 436 U.S. at p. 136, 98 S.Ct. at p. 1723.)

“This test, as is the case with the legal standard for arrest, is purely objective and thus there is no requirement that an actual suspicion by the officer be shown.”  (3 LaFave, Search and Seizure (2d ed. 1987) § 9.3(a), p. 425, fns. omitted.)

“The Terry standard being one of objective reasonableness, we are not limited to what the stopping officer says or to evidence of his subjective rationale;  rather, we look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious.”  (U.S. v. McKie (D.C.Cir.1991) 951 F.2d 399, 402.)

Prior to the passage of Proposition 8 in 1982, California decisions held that “lack of such subjective suspicion may render a detention unlawful, requiring the suppression of evidence flowing from the detention.”  (People v. Lloyd (1992) 4 Cal.App.4th 724, 733, 6 Cal.Rptr.2d 105;  citing People v. Bower (1979) 24 Cal.3d 638, 647, 156 Cal.Rptr. 856, 597 P.2d 115.)   However, article I, section 28, subdivision (d), of the California Constitution, which was enacted pursuant to Proposition 8, mandates that all questions regarding the exclusion of evidence be resolved under federal law.

In In re Lance W. (1985) 37 Cal.3d 873, 885–892, 210 Cal.Rptr. 631, 694 P.2d 744, the Supreme Court held that this 1982 enactment abrogated defendants' right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution.   Likewise this court has expressed:

“[T]he ‘right to truth in evidence’ provision of the California Constitution (Cal. Const., art. I, § 28, subd. (d)) abrogates California's independent exclusionary rule and ․ the exclusion of evidence is not mandated unless the seizure thereof was in violation of the federal exclusionary rule under the Fourth Amendment to the United States Constitution.”  (People v. Le (1985) 169 Cal.App.3d 186, 190, 215 Cal.Rptr. 106.)

The above post-Proposition-8 authorities notwithstanding, defendant argues that California's subjective suspicion requirement has survived based on language used in In re James D. (1987) 43 Cal.3d 903, 239 Cal.Rptr. 663, 741 P.2d 161, a post-Proposition 8 case.   The California Supreme Court called the California test “essentially the same standard” as the federal test.  (Id. at p. 914, 239 Cal.Rptr. 663, 741 P.2d 161.)   Despite this, the court set forth the test in terms of both objective and subjective standards by quoting from its 1979 Tony C. case as follows:

“ ‘[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must 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.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so․’ ”  (In re James D., supra, 43 Cal.3d at p. 914, 239 Cal.Rptr. 663, 741 P.2d 161.)

We are not convinced that the above quotation from In re James D. requires us to find that the subjective component of the test has survived Proposition 8.   This subject was addressed in People v. Lloyd, supra, 4 Cal.App.4th 724, 6 Cal.Rptr.2d 105.   In that case, the defendant argued that his detention by officers was invalid because the officers did not subjectively entertain articulable suspicion.  (Id. at p. 732, 6 Cal.Rptr.2d 105.)

The Lloyd court initially noted that prior to Proposition 8, case law indeed indicated that the lack of a subjective suspicion may render a detention unlawful.  (People v. Lloyd, supra, 4 Cal.App.4th at p. 733, 6 Cal.Rptr.2d 105.)   The court found, as have we, that Proposition 8 mandates that federal law now controls the analysis used to determine the application of the exclusionary rule.  “Under federal law, a subjective suspicion is not required.”  (Ibid.) Lloyd expressly confronted the Supreme Court's comment in James D., supra, 43 Cal.3d 903, 239 Cal.Rptr. 663, 741 P.2d 161 and, in a footnote, noted James D. was not controlling because the issue of whether the subjective component survived Proposition 8 was not raised or considered by the court in James D.  (People v. Lloyd, supra, 4 Cal.App.4th at p. 733, fn. 8, 6 Cal.Rptr.2d 105.)

Because “ ‘cases are not authority for propositions not considered therein’ ” (Isbell v. County of Sonoma (1978) 21 Cal.3d 61, 73, 145 Cal.Rptr. 368, 577 P.2d 188), we similarly view the subjective test reference of James D. as not controlling.

The Fourth District reaffirmed the demise of the subjective test in People v. Uribe (1993) 12 Cal.App.4th 1432, 16 Cal.Rptr.2d 127:

“[N]umerous [federal district] courts have ․ held that a stop which is reasonable based on the objective facts is not made unreasonable by the officer's subjective hope the stop might yield evidence of other crimes.   [Citations omitted.]  [Other federal districts] have adopted a substantially similar test:  where a stop is motivated by the ulterior purpose of searching for evidence of an unrelated crime, it is still a valid stop if a reasonable officer would have stopped the car absent the illegal motive.  [Citations.]  Our court has likewise recently concluded [in People v. Lloyd, supra ] that the Scott/Macon [Scott v. U.S. (1978) 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168;  Maryland v. Macon (1985) 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370] line [of cases] imposes an objective, not subjective, test on the propriety of a stop.”  (Id. at p. 1438, 16 Cal.Rptr.2d 127.)

The Uribe court concluded based on the foregoing analysis that the patrol officers' subjective desire was irrelevant to the question of the validity of the stop and subsequent search.   The proper inquiry was whether a reasonable officer properly could have, or would have, stopped the defendant.  (People v. Uribe, supra, 12 Cal.App.4th at p. 1438, 16 Cal.Rptr.2d 127.)

We agree with Lloyd and Uribe and find the appropriate test to apply here is whether a reasonable officer, possessing the information then known to Officer Mitchell, could justifiably have detained defendant.   We conclude the objective facts would lead a reasonable officer to entertain an articulable suspicion sufficient to justify a detention.   Mitchell's subjective state of mind at the time he stopped defendant is irrelevant to this objective inquiry and does not alter the validity of the detention.

 We further note that even if a subjective test would have to be met in addition to an objective test, the detention would be valid.   Officer Mitchell indicated that one of the reasons he detained defendant was because he had jumped fences.   Officer Mitchell testified, “[i]t's not a normal thing for somebody to do at eleven o'clock at night, be jumping in other people's back yards.”   Thus it is reasonable to conclude Officer Mitchell subjectively suspected defendant's involvement in illegal conduct based upon his recognition it was not normal, lawful behavior for a person to jump over fences from one yard to another.

II.

The Tip, Insufficient Standing Alone, Was But One Factor Justifying the Detention

 Defendant asserts that the anonymous tip was legally insufficient as grounds for the detention.   Had this been the only basis for detention, he would be correct.  (See, for example, Alabama v. White (1990) 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301.)   However, as we have already noted, the detention was valid for other reasons.

The tip was anonymous and relatively vague, indicating only that suspected narcotics trafficking was taking place at the location.   Additionally, the tip in the instant case did not describe “ ‘future actions of third parties ordinarily not easily predicted’ ” (Alabama v. White, supra, 496 U.S. at p. 332, 110 S.Ct. at p. 2417), or offer particulars of crime, strategy or method of perpetration.   The police were given no indication of how the informant knew that which he/she purported to be the truth, and the veracity of the tipster himself was also unknown.   With none of the indicia of reliability established in the present case, “a tip such as this one, standing alone, would not ‘warrant a man of reasonable caution in the belief’ that [a stop] was appropriate.”  (Id. at p. 329, 110 S.Ct. at p. 2416, brackets in original, quoting Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.)   Therefore, the tip in the instant case, standing alone, was insufficient to justify the detention.

As was the case in White, however, in this case there was more than just the tip itself.  (White, supra, 496 U.S. at p. 329, 110 S.Ct. at p. 2416.)   In White, the court relied on the fact that the tip was sufficiently corroborated prior to the stop so as to create reasonable suspicion.  (Id. at pp. 331–332, 110 S.Ct. at pp. 2416–2417.)   The fact that the conduct previously described by the tipster and subsequently corroborated by the officers was of a type difficult to predict lent credibility to the tipster's veracity and credence to his presumed basis of knowledge.  (Ibid.)

Here, Officer Mitchell did not corroborate details of the tip prior to detaining defendant.   Rather, he was able to acquire information on the site prior to stopping defendant which was sufficient to justify the stop when considered under the “totality of the circumstances” test.  (Alabama v. White, supra, 496 U.S. at p. 328, 110 S.Ct. at p. 2415.)

Mitchell testified that he saw defendant in the back yard area of the house when other officers announced their arrival at the front door.   He added that he saw defendant then proceed around the back yard in a rather cautious manner, evading the beam of officers' flashlights which were cast down the side yard of the house.   Next, defendant “jumped” over two fences to escape the area and, upon arriving at a semipublic multiunit parking lot, defendant walked away in a hurried fashion.

Regarding whether these factors and circumstances are sufficient for the court to determine that articulable suspicion had been achieved, People v. Lloyd, supra, 4 Cal.App.4th 724, 6 Cal.Rptr.2d 105 is again instructive.   In Lloyd, San Diego police officers responded to a silent alarm at an antiques store at approximately 4 a.m. on March 29, 1990.   Upon arrival, one officer spotted a pickup truck parked by the rear of the building and Lloyd standing on the sidewalk at the corner of the building approximately 10 yards from the truck.   Lloyd looked at the officer, turned around, and began walking away.   The officer detained Lloyd for questioning.   Lloyd gave a false name, indicating that he worked the graveyard shift as a welder and that he was on his way home.   However, he was unable to give the officers an address of employment.   During the conversation, the officers heard noises from inside the store.   The officers placed Lloyd in their patrol car and investigated the interior of the building, locating his accomplice.  (Id. at p. 728, 6 Cal.Rptr.2d 105.)

On appeal, Lloyd argued the initial detention was illegal as the officers did not have articulable suspicion to justify the stop.   The court held that it was objectively reasonable for the officers to suspect Lloyd was involved in the burglary.  (People v. Lloyd, supra, 4 Cal.App.4th at p. 733, 6 Cal.Rptr.2d 105.)   In doing so, the court simply relied on the fact that the officers had found Lloyd standing alone at 4 a.m. next to a business in which a silent alarm had been triggered, and also that when defendant saw the officers, he began walking away.  (Id. at pp. 733–734, 6 Cal.Rptr.2d 105.)   The court determined, “On these facts, the officers acted reasonably under the circumstances in stopping and detaining Lloyd as a possible burglary suspect.”  (Id. at p. 734, 6 Cal.Rptr.2d 105.)

While in Lloyd the police officers were solicited to the scene via an alarm, officers in the present case were initially prompted by an anonymous tip;  however, this distinction is without any significant difference.   Both alarms and citizen tips act as catalysts to draw police attention to particular premises based on an unconfirmed suspicion that criminal activity is afoot and consequently alert the authorities to potential misconduct.

Further, in Lloyd, the defendant merely began to walk away from the officers when he saw them approach.   The court indicated that this conduct, tied with the triggered alarm and the location, was sufficient to justify a detention.   The present case demonstrates stronger circumstances of evasive behavior by defendant:  he “ducked away” from the officers' flashlights, he proceeded to “jump” over fences into neighboring yards, and was moving “quickly” when stopped by Mitchell.

Clearly, if walking away from a suspicious scene upon noticing the approach of officers was sufficient to create objectively articulable suspicion, defendant's evasive conduct in the present case, combined with the tip, was ample to justify Officer Mitchell's decision to detain him.

DISPOSITION

We direct the superior court to modify the abstract of judgment to reflect presentence time credits totaling 48 days and to send a copy of the modified abstract to the appropriate authorities.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   The People agree with defendant that the abstract of judgment fails to state time credits ordered by the trial court at the time of sentencing.   These credits are 32 days of actual custody plus 16 days of conduct credit for a total of 48 days.

2.   All facts are taken from the suppression hearing of October 2, 1992.

VARTABEDIAN, Associate Justice.

ARDAIZ, Acting P.J., and BUCKLEY, J., concur.