PEOPLE v. RAMIREZ (1984)

Defendant Ramirez was convicted by a jury's verdicts of possession of a sawed-off shotgun (Pen.Code, § 12020), and possession of such a shotgun by one previously convicted of a felony (Pen.Code, § 12021).   His appeal is from the judgment which was entered upon the verdicts.

This opinion respectfully advocates a change in the criminal law of California, from that announced by People v. Loewen (1983) 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436 (Loewen ), and People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 (Bower ).   We certify it for publication in accordance with rule 976, California Rules of Court, expressing the public policy of this state, which provides that an opinion of the Court of Appeal may not be published unless, among other reasons, it “criticizes with reasons given, an existing rule.”

The appeal is a companion case of Loewen.   The instant defendant Ramirez, and Loewen, were professional burglars who used a loaded sawed-off shotgun to protect themselves from any disturbance of their criminal ventures by victims, police officers, or others.   They were former prison inmates who, upon their release, settled in Lake County, California.   Police officers, acting in good faith (see Loewen, 35 Cal.3d at p. 124, 196 Cal.Rptr. 846, 672 P.2d 436), made an investigative stop of their motor vehicle in that county.   They obtained a valid, or at least a here unquestioned, consent for a search of the vehicle.  (See Loewen, 35 Cal.3d at p. 122, 196 Cal.Rptr. 846, 672 P.2d 436).   In the vehicle were found the proceeds of a burglary committed earlier in the day and, between its occupants' front seats, their sawed-off shotgun, loaded and ready for use.

Loewen and Ramirez were charged with their manifest crimes.   In the municipal court, and the superior court, they sought to suppress the evidence of their offenses, on the ground that their Fourth Amendment rights had been violated by the investigative vehicle stop.   Neither court found constitutional abridgment.   Loewen then, in the course of a plea bargain, admitted guilt of receiving stolen property and was sentenced therefor.   Ramirez chose to stand trial.   He was found by a jury to have possessed the sawed-off shotgun, and he also was sentenced to prison.   Each of the defendants has appealed from the judgment which was entered against him.   The appeals were assigned to this division of our court.

Loewen's appeal was first reached by us.   We also, found no constitutional violation by the police officers in their investigative stop, and affirmed the superior court's judgment.   Thereafter the high court granted Loewen's petition for hearing, found the police officers to have acted unconstitutionally, and ruled that all evidence of his crimes must be suppressed.   His conviction was reversed, and there being no legal evidence of his crimes, the charges against him will necessarily be dismissed.

We now have before us the appeal of Loewen's partner in crime, Ramirez, whose guilt, we opine, has been established by overwhelming evidence.

 But nevertheless, under well-established rules of law, we are bound, regardless of what our views might otherwise be, to apply to the case before us the holding of Loewen.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) ¹

We must therefore reverse the judgment against Ramirez, and, there being no lawful evidence of his crimes, order that the proceedings pending against him in Lake County be dismissed.

We do so reluctantly.   We are, respectfully, of the opinion that the holdings of Loewen, and of Bower upon which Loewen is founded, are not constitutionally compelled, and that they unnecessarily and unreasonably hamper police officers in the performance of their duty to protect the lives, persons, and property, of the people of California.

We state the relevant evidence, and inferences which must reasonably be drawn therefrom, as found true by the superior court on Loewen's and Ramirez' joint motion to suppress evidence.

The “Middletown-Cobb” area of Lake County, which includes a recent residential subdivision development, had been plagued by burglaries during recent months.   A uniformed officer, charged with the responsibility of investigating such crimes and apprehending the offenders, was assigned to the area.   His “biggest problem was residential burglaries and thefts from garages, houses․”  There was “a big increase in thefts” in the preceding 3 or 4 months, and the officer had personally investigated about 30 of them.   Three had occurred in the immediate area during the “past week.”   There were many reports but few arrests;  as to “most of them the victims don't have any idea.”   The officer testified:  “Somebody who was committing the thefts in that area at least in my mind is doing a lot of moving.   And they're having to use vehicle because they're going up there taking things out of other vehicles.   So they have to have a vehicle or some sort of means of concealing them, to take them out of the area or move them to another area.” ²

While patrolling the area one afternoon in a marked police car, the officer observed a parked automobile on the highway which was blocking a roadway entering upon it.   The sight was unusual;  a young man was seated upon the hood of the car which had bandana handkerchiefs covering each of its taillights.   The officer stopped his vehicle;  his intention was not to “give him a citation,” but instead “to find out why he was parked in the roadway, [to] advise him that he was parked illegally and to move his vehicle,” and to inquire “what was wrong with the taillights.”

The young man told the officer he was waiting for his friend “Bub,” who had gone into the nearby “subdivision ” to collect some money owed him.   Bub, he said, had told him to wait there at the side of the highway, because his debtor didn't want strangers to know where he lived.   Curious, the officer inquired about Bub's last name.   The young man said he didn't know it, but that Bub was driving a “yellow, Japanese built, pickup truck.”   He “probably” said it was a “Datsun”;  Datsuns and Toyotas “look so similar.”   And the young man appeared nervous, his hands were visibly shaking, and without looking at the officer, he kept staring at the ground, “kind of looking around.”

Moments later and apparently from the direction of the “subdivision,” down the highway came a “yellow, Japanese built, pickup truck,” as closely described by the young man;  “it eventually became a Toyota.”   It was travelling at a “normal ” speed.

As the pickup approached, its two front seat occupants were looking in the direction of the young man, the improperly parked automobile, and the officer.   When the vehicle was about “eight to ten feet” away, the officer made “eye contact” with its driver, Loewen.   Thereupon the pickup's occupants quickly turned their heads, not to the highway ahead of them, but instead to the other side of the highway.   The officer “concluded” that the men did not want their faces seen.   At the same instant, as testified by the officer, “when ․ I had eye contact with the driver, and the driver and the passenger turned away from me, the vehicle accelerated.   And I felt that they were presently or had been involved in some sort of criminal activity.”   The pickup's acceleration was not only visible, it was heard by the officer;  “a motor ․ makes a certain noise as it's being accelerated.”

At that point the officer hurriedly “got back in [his] patrol vehicle and turned around to pursue the yellow pickup.”   In the ensuing pursuit, with the officer travelling at least 25 miles above the speed limit, he nevertheless “lost ” the yellow pickup.   The officer then went to a telephone, imparted to headquarters or another officer all relevant information, and suggested that the yellow pickup be subjected to an investigative stop.   Soon the yellow pickup was apprehended and stopped by other officers, and the here unquestioned (by Loewen, Ramirez, or otherwise) consent to search it was given.   The search, as earlier noted, disclosed the proceeds of a burglary committed earlier that day, and the loaded sawed-off shotgun used, or ready for use, in its perpetration.

 By its denial of the motions of Loewen and Ramirez to suppress, the superior court resolved all evidentiary conflicts in favor of the People and found the evidence which we have related, to be true.   We are bound by that factual determination.  (People v. Superior Court (Peck) (1974) 10 Cal.3d 645, 649–650, 111 Cal.Rptr. 565, 517 P.2d 829;  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621;  People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 477 P.2d 409.)   It would thus ordinarily become our duty to determine, as a matter of law, whether on the facts as found by the trial court, the conduct of the police officers was reasonable.   (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Accordingly, for purposes of the appeal, the above-related facts are true.

We make certain other initial observations.

We emphasize that, as found by the superior court and as noted by Loewen, the police officers in the automobile stop and investigation acted in “good faith,” and that the voluntariness, and otherwise the validity, of the “consent ” of the crime car's operator to search it, has gone unquestioned.

The only issue of Loewen and of the instant appeal was, and is, whether the police officers, under all of the apparent facts and circumstances, had a right to pursue and stop the fleeing vehicle occupied by Loewen and Ramirez, for a lawful investigation.   Assuming such right, no contention is discerned that the pursuit and stop of the pickup truck was otherwise unlawfully, or improperly, conducted.

 And while an automobile may not be stopped or detained on “mere curiosity, rumor or hunch” (In re Tony C. (1978) 21 Cal.3d 888, 894, 148 Cal.Rptr. 366, 582 P.2d 957), it is nevertheless held by high authority that a brief investigative stop of an automobile is but a “minimal intrusion ” (Delaware v. Prouse (1979) 440 U.S. 648, 655, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660;  United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607).

 Nor need the required suspicion for an investigative automobile stop be a “strong suspicion,” for if there be such a strong suspicion of criminality, it will ordinarily afford “probable cause” for an arrest.  (See People v. DeVaughn (1977) 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872;  People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632.)   It is sufficient if the circumstances disclose “a reasonable possibility ” that the suspect is involved with crime.  (People v. Harris, supra, p. 389, 124 Cal.Rptr. 536, 540 P.2d 632.)   The rationale was well explained by the late Chief Justice Roger J. Traynor in People v. Mickelson (1963) 59 Cal.2d 448, 452, 30 Cal.Rptr. 18, 380 P.2d 658, as follows:  “We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment.   It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement.   It wards off pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.”

We are brought to the narrow issue before us.

Bower and Loewen hold that police officers, under the facts and circumstances of those cases, may not, as a matter of law, consider the fact of a “high crime” area, in determining whether they have probable cause for a stop or detention of a person or automobile, in their investigation of possible criminal activity.  (We opine that if they could, there would remain no conceivable bar to the officers' investigative stop of the vehicle.)

Several reasons are given:  “The ‘high crime area’ factor is not an ‘activity’ of an individual”;  use of the factor is “easily subject to abuse”;  there are “ ‘dangers' of using an officer's experience as to prior arrests.”   (Loewen —35 Cal.3d, p. 124, 196 Cal.Rptr. 846, 672 P.2d 436;  Bower —24 Cal.3d, p. 645, 156 Cal.Rptr. 856, 597 P.2d 115.)   And “as a practical matter attaching a high crime label under [the case's] circumstances would do little to differentiate one location from another in any meaningful way.”  (Bower —24 Cal.3d, p. 646, fn. 8, 156 Cal.Rptr. 856, 597 P.2d 115).

Bower (24 Cal.3d, p. 645, 156 Cal.Rptr. 856, 597 P.2d 115) elaborated the latter reason, saying:  “[T]his court has warned of the ‘dangers' of using an officer's experience as to prior arrests to conclude that a location's crime rate is high.   Where there is no indication that those arrests were themselves proper or that they resulted in convictions of the persons arrested, it is impossible to use them as an accurate assessment of crime rate for the purpose of evaluating the validity of a later intrusion upon an individual's personal security.” ³

As to Bower there can be no doubt of the accuracy of the police officer's description of the subject “high crime” rate.   The area is widely recognized as one of the most crime ridden of the United States, a matter which courts may judicially notice.  (Evid.Code, § 452, subd. (g)(h).)   Its unfortunate inhabitants generally, for economic reasons, may not leave it, and other of the city's residents generally, are fearful of entering it.   Indeed, the city's police department has issued public warnings to those who must drive through the area.   They are advised to keep their doors locked and windows closed, lest at some intersection stop, the cars be entered and at the point of a knife, or handgun, their occupants be robbed or raped.

Other courts of the nation are in profound disagreement with Bower and Loewen.  (We find none in agreement.)

On the issue of probable cause:  “Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area.   Officers may consider the characteristics of the area in which they encounter a vehicle.”  (United States v. Brignoni-Ponce, supra, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581);  “[w]hile properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area [an officer] had ample reason to fear for his safety.”  (Adams v. Williams (1972) 407 U.S. 143, 147–148, 92 S.Ct. 1921, 1923–1924, 32 L.Ed.2d 612);  “[i]t would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this [suspicious] behavior further.”  (Terry v. Ohio (1968) 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889);  “ ‘[i]t has been very justly observed at the bar, that the Court is bound to take notice of public facts and geographical positions;  ․’ ”  (Carroll v. United States (1925) 267 U.S. 132, 159–160, 45 S.Ct. 280, 287–288, 69 L.Ed. 543.)

 There is thus no constitutional impediment barring consideration of “high crime” areas in the determination of probable cause for an investigative stop, in a police officer's investigation.

Lesser federal courts have spoken on the subject.   The following are representative:

“Our decisions recognize that the ‘high-crime’ character of an area is a relevant factor in determining probable cause․  ‘The courts have rather consistently concluded that “the incidence of a high crime rate is a relevant circumstance to be considered in determining the existence of probable cause,” ․’ ”  (United States v. White (D.C.Cir.1981) 655 F.2d 1302, 1304.)

“Probable cause does not emanate from an antiseptic courtroom, a sterile library or a sacrosanct adytum, nor is it a pristine ‘philosophical concept existing in a vacuum,’ ․ but rather it requires a pragmatic analysis of ‘everyday life on which reasonable and prudent men, not legal technicians, act.’  ․  [O]fficers, experienced and learned in their professions, related a number of highly suspicious circumstances surrounding the arrest to the court.   Their individual experience reinforces our finding of probable cause and is a legitimate factor for consideration by this court․  As we [have] indicated ․ ‘conduct innocent in the eyes of the untrained may carry entirely different “messages” to the experienced or trained observer.’  ․   Although no presumption of guilt arises from the activities of inhabitants of an area in which the police know that narcotics offenses frequently occur, the syndrome of criminality in those areas cannot realistically go unnoticed by the judiciary.   It too is a valid consideration when coupled with other reliable indicia or suspicious circumstances․  We make this statement warily for it is all too clear that few live in these areas by choice.   A delicate balance must be struck between the right of the often-victimized innocent ghetto inhabitant to adequate, unhampered police protection and the rights guaranteed to him under the Fourth Amendment.”  (United States v. Davis (D.C.Cir.1972) 458 F.2d 819, 820–821;  the emphasis is added.)

Typical of holdings of the states of our union are the following:  “While an area which is the site of frequent narcotics traffic cannot transform essentially innocent circumstances into unlawful conduct, we would be ignoring reality if the character of the neighborhood did not play some part in the total assessment of probable cause.”  (Peterkin v. United States (D.C.App.1971) 281 A.2d 567, 568, fn. 4.)  “Concededly, the incidence of a high crime rate is a relevant circumstance to be considered in determining the existence of probable cause․”  (People v. Oden (1955) 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188, 191.)

And, from his overall view of the nationwide authorities, Professor LaFave instructs:  “The courts have rather consistently concluded that ‘the incidence of a high crime rate is a relevant circumstance to be considered in determining the existence of probable cause,’ and properly so.”  (1 LaFave, Search and Seizure (1978) § 3.6(g), p. 676.)

“[A] reasonable suspicion of involvement in criminal activity will justify a temporary stop or detention.   Under that standard, if the circumstances are ‘consistent with criminal activity,’ they permit—even demand—an investigation:  the public rightfully expects a police officer to inquire into such circumstances ‘in the proper discharge of the officer's duties.’   (People v. Flores, supra, 12 Cal.3d [85] at p. 91 [115 Cal.Rptr. 225, 524 P.2d 353].)  No reason appears for a contrary result simply because the circumstances are also ‘consistent with lawful activity,’ as may often be the case.   The 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.’ ”  (In re Tony C., supra, 21 Cal.3d 888, 894, 148 Cal.Rptr. 366, 582 P.2d 957.)

Adverting to the facts of Loewen and of the case before us, as found by the superior court and thus binding on all reviewing courts:  A police officer investigating a rash of burglaries in a nearby subdivision, learned that one Bub who was presently in the subdivision with a pickup truck, had told the young man at the roadside that a person he was visiting did not want his address to be known by anyone.   Moments later a pickup truck, as precisely described by the young man, came down the highway.   As the vehicle approached, its occupants turned their eyes from the officer and from the highway ahead, patently to avoid their identification.   And as they did they accelerated the pickup from a normal speed to far in excess of the speed limit.

We are of the opinion that the police officer and the superior court, from such circumstances rationally concluded that there was a reasonable possibility that the vehicle's occupants had been, as in fact they were, involved with crime.  (See People v. Harris, supra, 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632.)

“[A] reasonable suspicion of involvement in criminal activity will justify a temporary stop or detention.   Under that standard, if the circumstances are ‘consistent with criminal activity,’ they permit—even demand—an investigation:  the public rightfully expects a police officer to inquire into such circumstances ‘in the proper discharge of the officer's duties.’  ․”   (In re Tony C., supra, 21 Cal.3d 888, 894, 148 Cal.Rptr. 366, 582 P.2d 957;  our emphasis.)

Were we not bound by Bower and Loewen we would affirm the judgment of the superior court.

The judgment is reversed, and the superior court is instructed to dismiss the instant criminal prosecution against defendant Ramirez.

I concur in the judgment of reversal only, a result clearly ordained under the binding precedent of the companion case of People v. Loewen (1983) 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436.   Our constitutional duty is fulfilled in simply following that controlling decision involving the same facts and same invalidated detention.   Nothing more is either compelled or necessary.   Accordingly, I cannot and do not join in the remainder of the lead opinion, consisting of dicta and unwarranted factual assumptions tendered for the avowed purpose of judicial criticism of an existing rule of law.   To the extent that such judicial oversight by an intermediate court is appropriate,¹ the unusual critique misconceives the holdings and principles established in the decisions targeted.   Neither People v. Loewen, supra, 35 Cal.3d 117, 196 Cal.Rptr. 846, 672 P.2d 436 nor People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115 compel automatic rejection of a “high crime area” (the ultimate concern upon which the lead opinion hinges) as a factor to be considered in testing the constitutional validity of a challenged detention.

Those decisions, as well as other authorities discussed therein, carefully explain—correctly, I believe—that in assessing constitutional compliance little weight should be accorded to that single factor in the absence of a sound evidentiary foundation.  (People v. Loewen, supra, 35 Cal.3d at pp. 124–125, 196 Cal.Rptr. 846, 672 P.2d 436;  People v. Bower, supra, 24 Cal.3d at pp. 645–646 and fn. 8, 156 Cal.Rptr. 856, 597 P.2d 115.)   Indeed, that long-settled principle has but recently been reaffirmed.   (See People v. Aldridge (1984) 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240 [officer testified to 200 arrests in area of detention].)

Since none of those precedential holdings represents a departure from established constitutional doctrine governing detentions, it is difficult to understand the logic of the lead opinion's analysis in a fashion normally associated with conventional academic critique.

I concur in the result only, and in the certification for publication.

FOOTNOTES

1.   Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.  “The decisions of this court [i.e., Supreme Court] are binding upon and must be followed by all the state courts of California.”

2.   It is common knowledge, at least to police officers, the judiciary, and those familiar with enforcement of the criminal law, that professional thieves, robbers, and burglars, will often change clothes and automobiles, in order to avoid detection.

3.   The rationale:“ ‘[P]olice officers cannot utilize invalid arrests as a basis for estimating a particular location's crime rate and then utilize the resulting estimate in determining the reasonableness of an arrest and search in that location.’“ ‘[A] prior related arrest where there is no conviction must have even less than a “slight tendency” to establish a present violation of the law.’“This court has observed that ‘giving substantial weight to the perceived crime rate of an area [based on arrests alone] may constitute a self-fulfilling prophecy.’  (Ibid.)“Some other problems with the ‘high crime area’ justification appear in the cases.   Often, the courts have been told in conclusory terms that an area has a ‘high crime rate’ without being advised of the basis for the conclusion or of the nature of the crime or crimes involved․  Or, the ‘area’ to which a ‘high crime rate’ label has been attached may be a large one, without any attempt being made to show that that overall crime rate is valid in the particular location in question․  On other occasions, it is abstractly asserted that an area has a high crime rate without showing how the allegedly suspicious activity involved in the particular case is related to the type of activity upon which that crime rate estimate is based.   To the extent such foundational matters are lacking, courts cannot logically be expected to accord considerable weight to this factor.“Finally, there is as yet no consistent or predictable agreement as to what ‘rate’ of crime is a ‘high’ one for this purpose.   While it may be valid to say that one burglary a year in a neighborhood is too many, as a practical matter attaching a high crime label under such circumstances would do little to differentiate one location from another in any meaningful way.”  (Bower —24 Cal.3d, p. 646, fns. 6, 7, 8, 156 Cal.Rptr. 856, 597 P.2d 115.)

1.   I do not agree that the declared objective and underlying analysis satisfy the intended purpose of the standards governing publication.  (Cal.Rules of Court, rule 976.)

ELKINGTON, Associate Justice.