PEOPLE v. WILLIAMS III (1987)

The People appeal from the trial court's granting of respondent's motion to suppress evidence pursuant to Penal Code section 1538.5.   We reverse.

Statement of Facts

The facts of this case are undisputed.   In mid-February 1985, Officer Albert Dunn was on routine patrol in his marked police car in the City of Vallejo.   At approximately 2 p.m., he noticed two Black males standing in the middle of Sheridan street.   One of the men was respondent, Henry Williams.   The officer testified that the area was known to him as one involving narcotics activity.

As Officer Dunn approached, respondent and his companion had their backs to his vehicle.   Another police car was approaching from the opposite direction on Sheridan Street.   Apparently still unaware of Officer Dunn's presence, the two men started walking toward the sidewalk.   When they first noticed the officers' vehicle it was approximately four car lengths away.   The officer testified that the two men “looked at me and appeared to be startled.   They went into a half crouch suddenly.”   He also testified that he recognized respondent from previous occasions and been informed by other police officers prior to these events that respondent “had been convicted of narcotics violations and is currently on probation, apparently, for some narcotics violation.”   At no time did the officer leave his vehicle or attempt to communicate with the two men.

After going into the “half crouch,” respondent “sprinted” towards a couple of apartment buildings on the west side of Sheridan Street.   As he did so, he put his hands in his jacket pockets and ran around the corner of one of the buildings.   Immediately, Officer Dunn accelerated his vehicle and turned into the parking lot between the two sets of apartments.   He lost sight of respondent for approximately three to four seconds.   After coming to a stop in the parking lot, the officer saw respondent running up a flight of stairs in one of the buildings.

Officer Dunn then exited his vehicle and walked to the bottom of the stairwell and instructed respondent to come back down the stairs.   As respondent complied, the officer noticed a clear plastic bag in a planter box located at the side of the building.   The bag was open and inside were a number of small paper bindles.   The officer picked up the bag and noticed another close by.   Dunn testified that the bags were found along the shortest route between where he lost sight of respondent and where he started up the stairs.

It was subsequently determined that the bags contained 3.03 grams of cocaine and a fingerprint of respondent was found on one of the bags.

The People contend that the superior court's suppression of evidence was erroneous.   They argue, inter alia, that appellant was not under the threat of an unlawful detention and, therefore, the discarded contraband should not have been suppressed.   We agree.

Discussion

Because the facts here are undisputed, “there is no factual issue entitled to a substantial evidence standard of review;  rather, it is the ultimate responsibility of this court to measure the facts as found by the trier against constitutional standards.  [Citation.]”  (People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240.)

The test for justifying a valid detention is well settled:  “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) [1970] 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.”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted;  People v. Aldridge, supra, 35 Cal.3d at p. 478, 198 Cal.Rptr. 538, 674 P.2d 240.)

In granting respondent's motion to suppress the evidence, the trial court relied on People v. Aldridge, supra, 35 Cal.3d 473, 198 Cal.Rptr. 538, 674 P.2d 240.   In that case defendant was with a small group of people in a liquor store parking lot at 10:15 p.m. when a police car entered the lot.   It was the practice of the officer involved to stop and question every person that he saw in that particular parking lot.   As the patrol car entered the lot, the group began to disperse.   Defendant and a few others first walked, and then ran across the street.   The officer radioed a nearby patrol car to stop and “interview” those who had ran from the scene.   After defendant was stopped, it was discovered that he was carrying a loaded gun later determined to be stolen.  (At pp. 476–477, 198 Cal.Rptr. 538, 674 P.2d 240.)

In holding the trial court erred in denying defendant's motion to suppress, our Supreme Court reasoned, “the detention of defendant can be found reasonable only if [the initial officer] had sufficient information to justify making the detention himself.  [Citations.]”  (Id., at p. 478, 198 Cal.Rptr. 538, 674 P.2d 240.)   In concluding that he did not, the court rejected three factors put forth by the People to justify the detention:  “it was nighttime;  the incident took place ‘in an area of continuous drug transactions';  and defendant and his companions apparently sought to avoid the police.”   (Ibid.)  While it is true the facts of the present case are similar to those of Aldridge, we find them distinguishable.

 The factors known to Officer Dunn before he followed respondent in the apartment complex were:  (1) respondent had been previously convicted of narcotics violations;  (2) officer Dunn knew respondent was also on probation for prior narcotic violations;  (3) respondent “appeared to be startled” upon seeing the police and put his hand in his pockets as he ran off;  and (4) this was an area known for narcotics violations.   Under the totality of the circumstances, these factors were objectively sufficient to warrant a detention of respondent.

As to the first factor, it has been held that prior police knowledge of the defendant having a criminal record is a valid factor in considering whether an initial stop or detention is justified.  (See, e.g., United States v. Chamberlin (9th Cir.1980) 644 F.2d 1262, 1265 [although duration of detention held unlawful, initial stop valid where officer knew defendant to have a criminal record, defendant looked worried upon seeing the officer and subsequently ran off];  United States v. Owens (8th Cir.1973) 472 F.2d 780, 785 [recognition by officer that defendant had a police record is valid factor justifying detention].) ¹  In the instant case Officer Dunn testified he was informed by other officers that respondent had been convicted of narcotics violations.   At no time has respondent attacked the credibility of that information.²  We must, therefore, assume that such information was in fact reliable and could be used to justify a detention of respondent.   (See People v. Sutton (1976) 65 Cal.App.3d 341, 347–348, 134 Cal.Rptr. 921;  People v. Collin (1973) 35 Cal.App.3d 416, 420–421, 110 Cal.Rptr. 869.)

With respect to the second factor, it has been recognized that “Probation is not a right of the defendant but an act of clemency extended by the court in the hopes that the defendant may be rehabilitated.”  (People v. Brasley (1974) 41 Cal.App.3d 311, 316, 115 Cal.Rptr. 910;  People v. Cisneros (1986) 179 Cal.App.3d 117, 120, 224 Cal.Rptr. 452.)  “During the period of his probation, the probation remains in the constructive custody of the court and is bound by the terms and conditions of the court's probation order.”  (People v. Borja (1980) 110 Cal.App.3d 378, 382, 167 Cal.Rptr. 813.)

While the record is silent concerning the terms and conditions of respondent's probation and Officer Dunn did not claim to know that respondent was released subject to search without a warrant, ignorance of such detail certainly does not preclude a law enforcement officer from initiating contact with a known probationer.   To so recognize does not accord the officer carte blanche, however.   For conditions of probation and their enforcement “must be reasonable since [probationers] retain constitutional protection against arbitrary and oppressive official action.  [Citation.]”  (People v. Burgener (1986) 41 Cal.3d 505, 532, 224 Cal.Rptr. 112, 714 P.2d 1251.)   And to be reasonable, those conditions must be rationally related to the underlying offense for which probation is imposed.   It is “beyond dispute that a condition of probation which requires a prior narcotics offender to submit to a search” is reasonable.  (People v. Mason (1971) 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545.)   Is it not then just as reasonable for an officer to question a known prior narcotics offender, who is known to them to be on probation for a narcotics offense, when spotted in an area known for its high incidence of narcotic activity when engaged in a very suspicious activity himself?   We believe it is.   To hold otherwise would reduce “the means to control a probationer's activity to the disparagement of the public interest in maintaining a viable system of probation as an effective alternative to incarceration.”  (People v. Constancio (1974) 42 Cal.App.3d 533, 541, 116 Cal.Rptr. 910.)   The fact respondent is a probationer further distinguishes him from other citizens in the area.

With respect to the third factor, respondent's reactions to seeing Officer Dunn, our Supreme Court has held:  “A furtive gesture coupled with prior reliable information may constitute probable cause.  [Citation.]”  (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 819, 91 Cal.Rptr. 729, 478 P.2d 449, emphasis added.) ³  Although Kiefer was a search case, the same analysis has been applied to detention situations.  (People v. McGaughran (1979) 25 Cal.3d 577, 590, 159 Cal.Rptr. 191, 601 P.2d 207;  People v. Stephen L. (1984) 162 Cal.App.3d 257, 260–261, 208 Cal.Rptr. 453.)

At the preliminary hearing, Officer Dunn testified that he has found it to be a normal occurrance in this area that when a marked police unit patrols, people run away and toss contraband.⁴  Respondent, upon becoming aware of the officer's presence, looked startled and ran off, putting his hands in his jacket pockets.   Based upon his knowledge of the area and the reaction of respondent, we find that it was objectively reasonable to conclude respondent put his hands in his pockets to dispose of contraband.   As such, Officer Dunn was justified in pursuing him into the apartment complex.⁵

 In considering the fourth factor, location, we are mindful of our Supreme Court's concern of using a “high crime area” as a justification for police detentions.  (People v. Aldridge, supra, 35 Cal.3d at pp. 478–479, 198 Cal.Rptr. 538, 674 P.2d 240;  People v. Bower (1979) 24 Cal.3d 638, 645, 156 Cal.Rptr. 856, 597 P.2d 115.)   However, taken together with the other factors listed above, we find that these events occurring in an area known for narcotics activity ⁶ is a legitimate consideration in determining whether a detention was reasonable.⁷

Respondent contends these factors only establish “the officer's subjective suspicion that respondent might be involved in crimminal activity.   They establish, moreover, that he suspected everyone in the area.”  (Original emphasis.)   He further contends there were no objective factors present indicating a crime had taken place, or was about to take place, in which he was involved.   Respondent concludes:  “Having been illegally [d]etained by Officer Dunn on several previous occasions respondent was free to vote with his feet to leave the scene․” ⁸

It has been held that “If the underlying facts fail to reasonably ‘distinguish [the suspected individual] from any other citizen ․ at that time and place,’ the detention is not justified.  [Citations.]”  (People v. Bower, supra, 24 Cal.3d at p. 644, 156 Cal.Rptr. 856, 597 P.2d 115.)   However, such was not the case here.   Respondent was known to have prior convictions and to be on probation for narcotic violations.   In addition, he acted suspiciously upon seeing Officer Dunn before the latter made any attempt to make contact with him.   These factors were sufficient to distinguish respondent from others at the scene.  “[A]ny reasonable officer in a like position” would have been justified in following respondent.  (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

Conclusion

While it could certainly be argued that detention would not be justified based upon the existence of only one of these factors, detention is justified here by simultaneous concurrence.   Based on the totality of these circumstances, we find that there were objective, specific and articulable facts sufficient to justify the attempted detention of respondent.   Therefore, the contraband recovered by Officer Dunn was not discarded by the respondent under threat of an unlawful detention, and should not have been suppressed pursuant to People v. Menifee (1979) 100 Cal.App.3d 235, 160 Cal.Rptr. 682.

The judgment in favor of respondent, following the granting of his suppression motion, is reversed.

FOOTNOTES

1.   Since the offense occurred after June 9, 1982, Proposition 8 guidelines apply.  (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)

2.   In Restani v. Superior Court (1970) 13 Cal.App.3d 189, 196, 91 Cal.Rptr. 429, the court stated:  “if the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court, when challenged, ․ that the officer who originally furnished the information ․ was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention.   [citations.]”  (Emphasis added.)

3.   We are aware that the court in Kiefer criticized several decisions of the Courts of Appeal for using “gestures” “so thin as to stretch [the chain of inferences] almost to the breaking point.”  (Id., 3 Cal.3d at p. 820, 91 Cal.Rptr. 729, 478 P.2d 449.)   In doing so, however, they reaffirmed “the settled rule that ‘there is no exact formula for the determination of reasonableness.   Each case must be decided on its own facts and circumstances [citations]—and on the total atmosphere of the case.  [Citations.]’ ”  (Id., at p. 827, 91 Cal.Rptr. 729, 478 P.2d 449, quoting People v. Ingle (1960) 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)

4.   The officer testified that he has found “guns, money, narcotics of different types, empty paper bindles, full paper bindles” in the area of the apartment buildings.

5.   This argument was expressly rejected by the court in People v. Aldridge, supra, 35 Cal.3d at p. 479, 198 Cal.Rptr. 538, 674 P.2d 240:  “In an extention of the ‘flight’ contention, the People maintain the detention was justified by an alleged effort of the four men to ‘avoid discovery of contraband.’   If there were any objective evidence to support this conclusion, the claim might be meritorious;  a mere subjective speculation as to the men's purported motives, however, carries no weight.”In that case, however, the four men apparently made no other movements of a suspicious nature as they ran off.   While the gesture of placing your hands in your pockets as you run may, or may not, in and of itself be suspicious, such actions must be considered together with the place of their occurrance and the prior knowledge of Officer Dunn.

6.   The officer himself testified he had made several arrests in the area both for weapons and narcotics.

7.   Compare People v. Rodriguez (1969) 274 Cal.App.2d 770, 775, 79 Cal.Rptr. 240:  person's presence in a place suspected of narcotics activity, together with knowledge of past dealings in narcotics and suspicious actions by defendant sufficient for probable cause to arrest.

8.   Officer Dunn did testify that he had stopped respondent several times in this area, asked his name and ran warrant checks on him.   He also indicated that he gets out of his vehicle and talks to people in the area on occasion.   Although we find sufficient justification to warrant a detention under these facts, we emphasize that general “sweeps” of an area to try and gather information from individuals are not permissible.   As our Supreme Court has noted:  “A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality.”  (People v. Aldridge, supra, 35 Cal.3d at p. 479, 198 Cal.Rptr. 538, 674 P.2d 240.)

ANDERSON, Presiding Justice.

CHANNELL and SABRAW, JJ., concur.