PEOPLE v. LEYBA (1980)

The People appeal (Pen. Code, s 1238(a), subd. (7)) from an order of the Superior Court of Los Angeles County dismissing an information (Pen. Code, s 1385) following the granting of defendant's motion for suppression of evidence under Penal Code section 1538.5. Defendant Michael Patrick Leyba was charged in the information with possession of phencyclidine, in violation of Health and Safety Code section 11377(a).

FACTS

On June 22, 1979, at 11:30 p.m., Los Angeles County Deputy Sheriffs Lee and Flagett were investigating a “grand theft-person” report at the intersection of Meyer and Carmenita Streets. Their patrol car was parked on Meyer, west of Mina. While Deputy Sheriff Lee was sitting in the patrol car, he saw a black Monte Carlo automobile turn northbound onto Mina from Meyer Street. A school is located on the northeast corner of Mina and Meyer Streets. Deputy Sheriff Lee saw the headlights on the Monte Carlo blink on and off several times. After the lights in the Monte Carlo blinked, Deputy Sheriff Lee observed a light colored vehicle in the school parking lot blink its lights on and off several times. He was approximately 75 yards away from the two cars as they blinked their headlights. As the Monte Carlo continued northbound on Mina, the light colored vehicle drove out of the school parking lot and followed the Monte Carlo in a northbound direction.

At the time he made these observations, Deputy Sheriff Lee was sitting in the patrol car with the grand theft person suspect. His partner, Deputy Sheriff Flagett was standing next to the car, interviewing the victim of and witnesses to that offense. Deputy Sheriff Lee shouted to his partner that something requiring their attention was happening and that they should proceed to investigate.

Deputy Sheriff Lee was familiar with the school and the surrounding area. The school was closed and he was not aware of any classes which were in session at that hour. Deputy Sheriff Lee was aware of Mexican gang activity and that a number of school and other burglaries had occurred in the area, although he was not sure if that particular school had been burglarized.

Deputy Sheriff Lee believed that the blinking lights indicated the occupants of the two cars were signalling one another, perhaps to warn of police presence. He concluded that some kind of illegal activity was taking place, the nature of which he did not know, although “the strong possibility existed that a school burglary had taken place.”

Deputy Sheriff Flagett joined Lee in the patrol car and they drove in pursuit of the two cars, first proceeding east on Meyer to Mina and then northbound on Mina. Lee lost sight of the light colored car, but saw the Monte Carlo make a U-turn and park in a southbound direction in front of a residence at the intersection of Mina and Mitoney streets. Deputy Sheriff Lee stopped the patrol car at an angle facing the Monte Carlo and blocking it from moving. Lee could not recall if he turned on his car's red or amber lights, but he did shine the spotlight on the Monte Carlo. Lee saw three occupants in the Monte Carlo who proceeded to get out of the car; the defendant on the passenger side. He called to them to stop; two of them did so. Defendant Leyba continued to walk away from the deputies across the lawn of a residence. Deputy Sheriff Flagett walked toward defendant and ordered him to stop. Defendant Leyba looked in Flagett's direction and then reached into his left pants pocket, withdrew approximately 10 to 12 tinfoil bindles and threw them to the ground. Based on his training and experience, Lee believed the bindles contained phencyclidine.

Deputy Sheriff Flagett struggled with defendant; Lee ran to aid his partner and smelled the odor of phencyclidine about defendant's breath and person. Because of defendant's uncommon strength, his incoherent speech, and his bloodshot and watery eyes, Deputy Lee concluded he was under the influence of phencyclidine and the deputies arrested him for this offense. In a search of defendant following his arrest, Deputy Lee found eight bindles and two cigarettes containing phencyclidine. The bindles defendant threw to the ground were quickly picked up by people attending a social gathering at a residence adjacent to the location of defendant's arrest; none were found by the deputies.

SCOPE OF REVIEW

Defendant contends the trial court's decision that the detention in this case was unlawful, if factually supported, is binding on this court, and proceeds to argue that the trial court determination that the deputy sheriff did not have such reasonable suspicion as would justify a detention is supported by substantial evidence in the record.¹

Defendant evidently misapprehends the appropriate scope of review in cases such as this, where the evidence is uncontroverted and no reasonable inferences to the contrary may be drawn. The issue of the reasonableness of the search and seizure on the facts found, within the meaning of the Constitution, is one of law.² When appellate review is sought, “. . . it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the Constitutional standard of reasonableness.” (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623.)³

DISCUSSION

“(T)he courts have concluded that in 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: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer), supra, 3 Cal.3d (807) at p. 827 (91 Cal.Rptr. 729, 478 P.2d 449)); to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Citation.)” (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959.) Having stated the applicable legal standard, we shall apply it to the facts of this case.

It was 11:30 p.m.; as Deputy Sheriff Lee observed the black Monte Carlo drive northbound past the parking lot of a school located at the northeast corner of Mina and Meyer Streets, he noted that its headlights blinked on and off several times. The headlights of a light colored vehicle parked on the school parking lot then similarly blinked on and off. The light colored vehicle drove out of the school parking lot and appeared to follow the Monte Carlo northbound on Mina Street. It was this sequence of events which raised in Deputy Sheriff Lee's mind the suspicion that some criminal activity was afoot. Interrupting an investigation of a possible crime of grand theft person at the intersection of Meyer and Carmenita Streets, Deputy Lee and his partner Deputy Sheriff Flagett followed the two cars in their own. Deputy Sheriff Lee saw the Monte Carlo make a U-turn and park in front of a residence at the intersection of Monterey and Mina Streets. He stopped his car in the street, blocking the Monte Carlo, and then ordered the three occupants who were alighting from the Monte Carlo to stop. It is this initial detention of which defendant complains.⁴

Was the suspicion entertained by Deputy Sheriff Lee objectively reasonable i. e., based on facts observed and evaluated in the light of his training and experience? Or was it at best a hunch? At the hearing, Deputy Sheriff Lee testified that the school and surrounding area were part of his regular patrol area; that no classes or other activities were being conducted and it was unusual for anyone to be on the school premises at that hour; that the area experiences a substantial amount of Mexican gang related activity and a substantial number of school burglaries (although he had no knowledge of any at that particular school). He formed the opinion that criminal activity had occurred or was about to occur through an intertwining of his observations and his knowledge of the area. The flashing of headlights represented signalling, possibly indicating an awareness of the presence of the officers. While he was not sure of the exact nature of the activity, “a strong possibility existed that a school burglary had taken place.”

Defendant argues that since Deputy Lee testified he felt a “possible crime” was occurring, the detention was based on subjective curiosity or hunch; if his suspicion was something more than a hunch, it was not objectively reasonable. We disagree.

Because Deputy Sheriff Lee expressed some uncertainty as to the nature of the criminal activity he suspected, his suspicion is not therefore rendered objectively unreasonable. “The reasonableness of a detention does not depend on the precise words which an officer on the stand chooses to describe his state of mind at the scene.” (People v. Jones (1980) 103 Cal.App.3d 885, 890, 163 Cal.Rptr. 251, 253.)

The very notion that an ambiguity exists and requires resolution implies that an officer will not on each occasion view and be able to state exactly what is occurring. Moreover, “(t)he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. (Citation.)’ ” (In re Tony C., supra, 21 Cal.3d at p. 894, 148 Cal.Rptr. at p. 369, 582 P.2d at p. 960; see e.g., People v. McNeal (1979) 90 Cal.App.3d 830, 153 Cal.Rptr. 706; People v. Remiro (1979) 89 Cal.App.3d 809, 153 Cal.Rptr. 89; People v. Cowman (1963) 223 Cal.App.2d 109, 35 Cal.Rptr. 528; People v. Jones, supra, 103 Cal.App.3d 885, 163 Cal.Rptr. 251.)

Deputy Sheriff Lee has indeed articulated facts sufficient to raise a reasonable suspicion and justify the detention of the automobile and its occupants.⁵ The lateness of the hour; the blinking of headlights by the two cars, one parked in a closed school, so as to indicate signalling; the following of one by the other are all facts which support Deputy Sheriff Lee's suspicions when evaluated in the light of his training and experience, and his knowledge of ongoing gang activity and the occurrence of a number of school burglaries in the area.

We conclude that the initial stop of the automobile and the detention of its occupants were lawful; the motion to suppress should not have been granted.

Because the granting of the motions to suppress and dismiss interrupted the presentation of evidence on the motion to suppress by defendant, resumption of the hearing on the motion would be appropriate so that such evidence and rebuttal thereto may be presented by the parties.

Reversed and remanded.

I dissent.

I cannot agree with the majority's view that the trial court erred in granting defendant's motion to suppress evidence and then dismissing the information. It is my view that the evidence suppressed was the fruit of the poisonous tree of a constitutionally impermissible detention and arrest and, hence, that the trial judge simply performed his constitutional duty in granting defendant's suppression-of-evidence motion.

I agree with the majority that the constitutional standard for measuring the validity of a police detention of a defendant is that set forth in In re Tony C. (1978) 21 Cal.2d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957. That standard was more recently emphasized by our high court in People v. Teresinski (1980) 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874.

Thus, the Teresinski court observed: “We recently defined the constitutional standard for measuring the validity of a detention. In In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, we stated: ‘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: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (citation omitted), to suspect the same criminal activity and the same involvement by the person in question.’ ” (Teresinski, supra, 26 Cal.3d 457, 461, 162 Cal.Rptr. 44, 46, 605 P.2d 874, 875.)

It is my view that the officers' conduct in the case before us cannot possibly be equated with conduct which satisfies the requirements set forth in Tony C. Here the officers had neither “specific” nor “articulable” facts which caused them to suspect either (1) that some activity relating to crime had taken place or was occurring or about to occur, or (2) that the occupants (one of which was defendant) of the vehicles observed whom they intended to stop and detain were involved in any such activity.

The Tony C. court made it clear, I thought, that the fact that burglaries have taken place in a neighborhood “does not transform a residential neighborhood into a no man's land in which any passerby is fair game for a roving police interrogation.” (Tony C., supra, 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 371, 582 P.2d 957, 962.) In the case at bench, the actions of Deputy Sheriffs Lee and Flagett fit squarely into the interdicted category of making the area of the school involved a “no man's land in which any passerby is fair game for a roving police interrogation.” The defendant here was unquestionably subjected to such a “roving police interrogation.”

I consider the actions of Deputy Sheriffs Lee and Flagett to constitute a wholesale intrusion into defendant's privacy which was inescapably constitutionally impermissible.

There are factors set forth in In re Tony C. which are overlooked by the majority. I call attention to the fact that the language used by the In re Tony C. court is to the effect that, in determining whether a police officer possessed objective information to cause him to reasonably suspect a detained person of having engaged in criminal activity, we may consider that such police officer is entitled to draw upon his training and experience, but only “when appropriate ” to do so.

I deem it of considerable significance that the In re Tony C. court permits the use of an officer's training and experience in determining the objective reasonableness of his suspicions about criminal activity only when such training and experience are appropriate under the circumstances. In the case at bench the so-called experience consisted of two factors. One factor involved the officers' knowledge that there was a lot of gang activity in the neighborhood “Mexican” gang activity. But there is nothing in the record before us to indicate that the officers had knowledge that the occupants (or any of the occupants) of either vehicle were of “Mexican” origin. Is it appropriate for a police officer to assume that two cars blinking their lights as if signaling to each other contained Hispanic occupants engaged in gang activity? I think not. Further, is gang activity necessarily or, even generally, a criminal activity? Again, I think not.

If affirmative answers to the two questions posed constitute the officers' experience with respect to criminal gang activity, they defy common experience and should not be accepted as facts by this court. This kind of belief by an officer is not an objectively reasonable belief. On the contrary, this belief of the officers is not unlike that considered in In re Tony C. There the officer believed that a minor proceeding along a public street during school hours was ipso facto bent on committing crimes. The officer's theory, said the In re Tony C. court, “would treat every minor truant as a suspected thief, burglar, or worse; yet the prosecution made no attempt to prove, by statistics or otherwise, the validity of so startling an inference.” (In re Tony C., supra, 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 371, 582 P.2d 957, 962; fn. omitted.)

The second factor of the officers' experience consisted of their knowledge that there had been some recent burglaries of schools. But the officers had no information that the school from whose parking lot one vehicle exited had suffered any recent burglary. Again, this fact has been condemned as providing very little justification for an officer's belief that a person detained in the neighborhood was engaged in some criminal activity. In In re Tony C., the court criticized the decisions that have given weight to the fact that a detention took place in a “high crime area.” This “justification is so easily subject to abuse that this fact alone should not be deemed sufficient to support the intrusion (detention).” (In re Tony C., supra, 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 371, 582 P.2d 957, 962.) As further observed by the In re Tony C. court, “(a) day-old burglary report does not transform a residential neighborhood into a no man's land in which any passerby is fair game for a roving police interrogation.” (Ibid.)

The record before us establishes unerringly that Deputy Sheriffs Lee and Flagett did not possess any objectively reasonable belief that some criminal activity had already occurred or was about to occur or that the occupants of the two vehicles observed were “involved in that activity.” (In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.) (Emphasis added.)

Officer Lee testified as follows: “Q. Is that a fair statement, that you thought that it had just occurred or is about to occur, that you thought there was some criminal activity afoot? (P) A. Yes. (P) Q. Is it likewise fair to say that you were not sure of the exact nature of the activity? (P) A. That is correct. (P) Q. What did you think it was, or could have been? (P) A. Well, the strong possibility existed that a school burglary had taken place. However, my state of mind was that I felt something was going down but I didn't know what.” (Emphasis added.)

Here then we have an officer's belief that some criminal activity was going on but he “didn't know what” and that the occupants of the two vehicles were engaged in that unknown activity. The known facts to the police officer that there was “Mexican” gang activity in the neighborhood; that some schools had been burglarized; and that here were two vehicles probably signaling to each other by blinking lights and following each other must be contrasted with the facts that the officer did not know the racial identity of the occupants of the two vehicles and simply had a belief that the occupants must be engaged in some kind of criminal activity, but had no belief in what it was.

Viewed either singly or collectively, “the circumstances known to Officer (Lee) did not support a reasonable suspicion” (In re Tony C., supra, 21 Cal.3d 888, 898, 148 Cal.Rptr. 366, 372, 582 P.2d 957, 963) that defendant and his fellow vehicle occupants were involved in criminal activity when observed in the two vehicles. The ensuing investigative stop was thus based entirely on a combination of hunch, curiosity, surmise and conjecture and lacked any objectively reasonable basis on the officers' part that defendant or the other vehicle occupants were engaged in any form of criminal activity.

I would thus affirm the trial court's order dismissing the information.

FOOTNOTES

FOOTNOTE.  

1.  “A proceeding under Penal Code section 1538.5 to suppress evidence is a full hearing on issues before the Superior Court sitting as a finder of fact. (Citations omitted.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power and the trial court's findings whether express or implied must be upheld if supported by substantial evidence. (Citations omitted.)” (People v. Superior Court (Keithley ) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 530 P.2d 585, 587.)

2.  Where the facts are not in dispute, the appellate court must decide whether or not the search and seizure were lawful and the evidence admissible as a matter of law. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 271, 294 P.2d 23; People v. Superior Court (1970) 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 158 Cal.Rptr. 86.)

3.  While the defendant called a witness, Joe Males, to testify on his behalf at the hearing on the motion to suppress, the trial court took a recess before he had completed his testimony on direct examination. Following the recess, the trial court heard no further testimony from Males (who was not, therefore, cross-examined by the People); but proceeded to grant the motion. The trial court could thus have considered the testimony of only one witness, Deputy Sheriff Lee, in the hearing on the motion to suppress.

4.  If the initial stop of the automobile was unlawful, then all subsequent observations of the officers and contraband secured in a search following an arrest which flows from those observations must be suppressed as more pieces of forbidden fruit from that familiar grove of poisonous trees. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.)

5.  We note that the defendant was seen by Deputy Sheriff Lee to remove from his pants pocket and throw to the ground some number of foil bindles as he was walking away from the officers. These bindles, in the opinion of Deputy Sheriff Lee, contained phencyclidine as it is commonly packaged. They were retrieved not by the officers but by a number of other people apparently attending a party at an adjacent residence. Since none of these foil bindles, whatever their contents or ultimate disposition (about which we do not speculate), constituted evidence which the People sought to introduce in support of the charge against the defendant, we need not concern ourselves with the contention that these bindles were discarded by the defendant in response to threatened unlawful police conduct.

J. M. NEWMAN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

LILLIE, J., concurs.