People v. Ramirez

41 Cal. App. 4th 1608, 49 Cal. Rptr. 2d 311, 96 Daily Journal DAR 922, 96 Cal. Daily Op. Serv. 602, 1996 Cal. App. LEXIS 63

• Court: California Court of Appeal
• Decided: January 26, 1996
• Docket: D021646
• Status: Published

Opinions

Opinion

HUFFMAN, J.

In Alabama v. White (1990) 496 U.S. 325, 331 [110 L.Ed.2d 301, 309-310, 110 S.Ct. 2412], the Supreme Court set forth general standards for reviewing investigative detentions made by the police based on the totality of the circumstances, including information provided by an anonymous tip. Such a tip can support a lawful detention where the information provided is “sufficiently corroborated to furnish [the requisite] reasonable suspicion.” (Ibid.) In this case we apply this standard to analyze the amount of corroboration required to make the tip sufficiently reliable to permit a reasonably trained police officer to act upon it in conducting an investigative detention.

Salvador Hernandez Ramirez appeals a judgment convicting him of possessing a controlled substance for sale (Health & Saf. Code, § 11378) following the denial of his motion to suppress evidence (Pen. Code,¹ § 1538.5). He contends the trial court erred in denying his suppression motion because the officers did not have reasonable suspicion to detain him, and all evidence seized after the unlawful detention must be suppressed as the direct product of the detention. As we shall explain, we conclude the information provided by the anonymous tip was sufficiently corroborated under the totality of these circumstances to provide reasonable suspicion he was engaged in criminal activity. Accordingly, we affirm the judgment.

Factual and Procedural Background

On February 14, 1994, at 11:48 a.m., San Diego Police Officer Bret Righthouse responded to a radio dispatch to investigate narcotics activity at 1300 25th Street in Golden Hill Park. Officer Righthouse and his partner were informed an anonymous person had reported three Hispanic males in a two-door blue Buick, California license plate No. 1MBK445, were dealing narcotics from their vehicle on the east side of the park. Within five minutes of receiving the dispatch, the officers arrived at the designated location and found a car containing three Hispanic males matching precisely the information received from the anonymous informant. As the officers approached this vehicle on foot, they saw the occupants engaged in conversation with the windows open. Officer Righthouse testified at Ramirez’s preliminary hearing that when he walked up to the car, he saw a beer can which he believed was on the ground outside of the passenger’s door, as well as another possibly inside the vehicle on the floorboard.

Based on Officer Righthouse’s professional experience, the nature of the call and his knowledge that the Golden Hill Park area was a very “proliferate” area for narcotics, he knew there was a nexus between people dealing narcotics and simultaneously possessing weapons. Consequently, he requested the occupants to step out of the car. The officers then patted them down for weapons. Ramirez, who was a passenger in the rear seat, held a jean jacket in his hand as he got out of the car. Officer Righthouse requested he place it on the back of the car for safety purposes. After patting Ramirez down for weapons, Officer Righthouse asked him if he had any contraband or drugs on his person or in his jacket. After Ramirez said no, Officer Righthouse asked him for consent to search his jacket and person for drugs. Ramirez agreed. Officer Righthouse then discovered a small black plastic object marked “battery pack” in Ramirez’s left jacket pocket and asked if it belonged to him. Ramirez admitted it did, explaining it was for his remote control car. Upon hearing a rattling sound inside it, Officer Righthouse asked Ramirez if he could open it. Again, Ramirez consented. Officer Righthouse then discovered 10 small plastic bindles, confirmed to contain very large pieces of rock methamphetamine packaged for sale, inside the battery area of the plastic pack. After Officer Righthouse admonished Ramirez of his constitutional rights, Ramirez explained he had obtained the methamphetamine prepackaged in the battery pack from a friend of a friend in a bar, he was going to sell the drugs for $50 a bindle, and the explanation of the storage box belonging to his remote control car was a story he had been told to use if he were stopped by the police for dealing narcotics.

After being arrested and charged with possession of a controlled substance for sale and simple possession, Ramirez brought a suppression motion at his preliminary hearing on the ground the officers illegally detained him because they did not have reasonable suspicion he had committed or was about to commit a crime. (§ 1538.5.) The motion was denied. On April 8, 1994, an information charging Ramirez with the two crimes was filed. On May 5, he renewed his suppression motion. In argument, the deputy district attorney pointed out the officer’s knowledge of the area where the car was located as a narcotics-prone area was significant, and suggested that if the tip had mentioned an area where drug dealing was unknown to police, the tip would have been weaker. The trial court denied the motion on May 27. On June 3, Ramirez pled guilty to possession of a controlled substance for sale, and the second count was dismissed. On July 29, the court suspended imposition of sentence and imposed supervised probation for three years on a variety of terms and conditions, including fourteen days in county jail. Ramirez appeals the judgment.

Discussion

Where the facts bearing on the legality of a challenged detention are undisputed, an appellate court is confronted with a question of law; we must independently determine whether the factual record supports the trial court’s and the magistrate’s conclusions this detention met the constitutional standard of reasonableness. (People v. Aldridge (1984) 35 Cal.3d 473, 477 [198 Cal.Rptr. 538, 674 P.2d 240]; In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1641 [19 Cal.Rptr.2d 455]; People v. Gallant (1990) 225 Cal.App.3d 200, 206 [275 Cal.Rptr. 50]; People v. Verin (1990) 220 Cal.App.3d 551, 555 [269 Cal.Rptr. 573].) We first set forth the standards that have been developed for evaluating investigative detentions in the circumstances of an anonymous tip, and then apply them to these facts.

I

Reasonable Suspicion to Detain

“In order to justify a 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], to suspect the same criminal activity and same involvement by the person in question.’ ” (People v. Aldridge, supra, 35 Cal.3d at p. 478, quoting In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957].) Where, however, an investigative stop or detention is “predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch,” the stop is unlawful even though the officer may have been acting in good faith. (People v. Conway (1994) 25 Cal.App.4th 385, 389 [30 Cal.Rptr.2d 533].)²

In discussing the difficulty courts have had in defining the standard for reviewing investigative detentions made by the police, the Supreme Court in United States v. Cortez (1981) 449 U.S. 411, 417-418 [66 L.Ed.2d 621, 628-629, 101 S.Ct. 690], said: “Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Citations.]”

An anonymous tip can support a lawful detention where the information provided is “sufficiently corroborated to furnish [the requisite] reasonable suspicion that [the suspect] was engaged in criminal activity . . . .” (Alabama v. White, supra, 496 U.S. at p. 331 [110 L.Ed.2d at p. 309].) Like probable cause, reasonable suspicion “is dependent upon both the content of information possessed by police and its degree of reliability. Both factors— quantity and quality—are considered in the ‘totality of the circumstances— the whole picture,’ [citation], that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” (Id. at p. 330 [110 L.Ed.2d at p. 309].) In performing this calculus, the Supreme Court declined to hold that “an anonymous caller could never provide the reasonable suspicion necessary for a Terry [v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], investigative] stop.” (Alabama v. White, supra, 496 U.S. at p. 329 [110 L.Ed.2d at p. 308].) Evidently, each case must be examined on its own facts to establish whether a challenged detention was objectively reasonable.

It is therefore instructive to examine the facts in Alabama v. White. The Alabama police received an anonymous tip indicating White would be leaving a particular apartment in a particular car and would be headed towards a specific motel, carrying a brown attaché case containing cocaine. The police went to the scene and observed a person leaving the approximate area in the vehicle described. However, she was carrying nothing in her hands when she entered the station wagon. The officers followed her for a while and concluded she was driving in the direction of the motel identified in the anonymous tip. Police then stopped the vehicle short of the motel and conducted a consensual search which produced narcotics. While noting it was “a close case” (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310]), the Supreme Court found the tip was sufficiently corroborated to furnish a reasonable suspicion White was engaged in criminal activity and thus the investigative stop did not violate the Fourth Amendment (id. at p. 331 [110 L.Ed.2d at pp. 309-310]).

In reaching its conclusions, the high court discussed earlier detention and anonymous tip cases. In Adams v. Williams (1972) 407 U.S. 143 [32 L.Ed.2d 612, 92 S.Ct. 1921], the Supreme Court sustained a stop and frisk on the basis of a tip given to the police by a known informant who had provided information in the past. The court concluded that the unverified tip was sufficient to support the arrest, but did not address the situation of an anonymous tip.

Later, in 1983, the Supreme Court in Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527, 103 S.Ct. 2317] dealt with an anonymous tip which was used as the basis of probable cause for a search warrant. The court in Illinois v. Gates upheld the use of anonymous tips with sufficient corroboration by the police where the totality of the circumstances permits a magistrate to find the informant’s information sufficiently reliable to support probable cause. The opinion in Alabama v. White applies the reasoning of Illinois v. Gates to the stop-and-frisk environment. Hence, Alabama v. White does not constitute a restriction upon police power. To conclude its analysis, the court remarked: “We think it also important that, as in Gates, ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ [Citation.] The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. [Citation.] When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310], first italics added.)

We do not read this concluding language to create a separate requirement in Alabama v. White, that to be reliable, an anonymous informant must supply predictions of a suspect’s future behavior; rather, if the informant does supply such information, which can then be verified, that circumstance supports the reliability of the informant’s information. Since it cannot be said, however, that an anonymous informant could never supply reasonable suspicion to detain a suspect (496 U.S. at p. 329 [110 L.Ed.2d at p. 308]), we must assume that even information supplied by an anonymous informant whose reliability is unknown can be factored into the reasonable suspicion determination, subject to some degree of corroboration. We next address the issue of sufficiency of the corroboration under these circumstances.

II

Application of Rules

Under the totality of these circumstances, what amount of corroboration of an anonymous tip must a police officer obtain before deciding, in light of his or her training and experience, to make an investigative detention to resolve under the ambiguous circumstances presented whether there is ongoing criminal activity? We first review the types of corroboration that may be obtained, then discuss the facts presented in light of applicable law.

A

Corroboration

The purpose of requiring corroboration of an anonymous tip is to ensure that there are probative indications of criminal activity along the lines suggested by the informant. (People v. Johnson (1991) 231 Cal.App.3d 1, 12 [282 Cal.Rptr. 114].)³ Corroboration of an anonymous tip can take several forms. For example, “ ‘[e]ven observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light. . . (Ibid., citing People v. Johnson (1990) 220 Cal.App.3d 742, 749 [270 Cal.Rptr. 70], disapproved on other grounds in People v. Camarella (1991) 54 Cal.3d 592, 606, fn. 6 [286 Cal.Rptr. 780, 818 P.2d 63]; see Illinois v. Gates, supra, 462 U.S. at pp. 243-244 [76 L.Ed.2d at pp. 551-552].) Similarly, “[w]hile a person cannot be detained for mere presence in a high crime area without more [citations], this setting is a factor that can lend meaning to the person’s behavior. [Citations.]” (People v. Limon (1993) 17 Cal.App.4th 524, 532 [21 Cal.Rptr.2d 397].) Other forms of corroboration include the verification of detail provided by the informant through the officer’s observations. Some information is so detailed as to be self-verifying, and in some cases verification from other sources can be achieved. (People v. Johnson, supra, 220 Cal.App.3d at p. 749.)

In Alabama v. White, the Supreme Court noted that not every detail mentioned by the tipster was verified, such as the name of the person leaving or the precise apartment from which she left. Although the tip provided she would be carrying the all-important attaché case including the cocaine, she was not carrying it when she emerged. Therefore, significant portions of the tip were uncorroborated until she departed and headed in the direction of the motel. The court, however, took into account the physical observations and the trip that followed. The nature of the corroboration provided by the police in Alabama v. White, confirmation of her future behavior (departure from the apartment and her route of travel), was significant because there was little else corroborated by the tip. The case does not, however, stand for the proposition that the future behavior predictions by the informant must be in the nature of travel or similarly drawn-out behavior, simply because those were the facts in Alabama v. White.

In a parallel factual context, several cases discuss the adequacy of various forms of corroboration of unattributed information received through police channels. In People v. Orozco (1981) 114 Cal.App.3d 435, 443-445 [170 Cal.Rptr. 604], the court discussed a challenge to a seizure based upon the source of the information leading to the officers’ actions. The officers had been informed that an “anonymous informant had phoned in, reported shots being fired out of a cream, vinyl top over cream colored vehicle in [the] area of Phillips and East End. Occupants several Mexicans.” When the officers arrived, they observed the vehicle in the location described, but did not observe any shooting or any weapons. However, cartridges were found near the car, supporting the information that shots were fired. (Id. at p. 444.) The police proceeded to order the occupants out of the vehicle at gunpoint and pat them down, resulting in a lawful search for weapons in the interior of the car. Thus, the court in Orozco found sufficient corroboration, which is wholly consistent with the decision of the Supreme Court in Alabama v. White.

People v. Orozco, supra, 114 Cal.App.3d 435, was followed by the Court of Appeal in People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 [235 Cal.Rptr. 62], involving detention of two described suspects after a report of a burglary in progress in the area. Again, the court relied on corroboration by police observation of the defendants at the scene to make reliable the earlier broadcast. Contrary to Ramirez’s argument, Johnson and Orozco cannot properly be distinguished on the theories that they were either decided before Alabama v. White or that they really dealt with issues of the source of the radio transmission under the so-called Harvey-Remers rule (People v. Harvey (1958) 156 Cal.App.2d 516 [319 P.2d 689]; Remers v. Superior Court (1970) 2 Cal.3d 659, 666 [87 Cal.Rptr. 202, 470 P.2d 11]). Instead, their treatment of the corroboration issue is fully applicable here.

Ramirez also seeks to distinguish Orozco, as involving an element of imminent danger characterizing a gun tip, as opposed to a tip of possession of drugs for sale. In Orozco, there is an element of imminent danger arising from the report of shots being fired; similarly, in People v. Johnson, supra, 189 Cal.App.3d 1315, there was a burglary in progress. However, the fact that an anonymous tip (or police dispatch) referring to shots being fired (or a crime in progress) requires corroboration does not mean that no corroboration is required for currently nonviolent crimes. In any case, the officer here testified that he knew there was a nexus between narcotics activity and weapons use. Even though narcotics dealing may not necessarily pose the same imminent risk of injury as there is in a report of shots being fired, it still qualifies as ongoing criminal activity deserving of investigation under proper circumstances. Similarly, even though, as Ramirez argues, drug dealing could alternatively be investigated via ongoing surveillance (as opposed to investigative detention), there is no reason to assume investigative detentions are improper where the potential criminal activity is drug dealing, as opposed to an already violent activity. Indeed, Alabama v. White allowed such a stop. (See also United States v. Sharpe (1985) 470 U.S. 675, 682-686 [84 L.Ed.2d 605, 613-616, 105 S.Ct. 1568].) The form of this type of intervention is of necessity an exigency because some type of crime is suspected to be afoot, requiring investigation based on reasonable suspicion. Ramirez’s argument overlooks that reasonable suspicion is a less demanding standard than probable cause to arrest. (Alabama v. White, supra, 496 U.S. at p. 330 [110 L.Ed.2d at pp. 308-309].)

Nor should investigative stops be confined to detentions intended to preserve officer safety: while the officer’s safety is a vitally important concern, it falls within the overall goal of protecting the valid pursuit of his or her duties in ascertaining if criminal conduct is occurring. (Terry v. Ohio (1968) 392 U.S. 1, 23-31 [20 L.Ed.2d 889, 907-911, 88 S.Ct. 1868].) Ramirez has offered no support for his theory that investigative detentions should be confined to the arena of violent crime and should not be used to investigate reported drug dealing under circumstances such as these. However, even though these were proper circumstances for an investigative detention, the question remains if there was adequate corroboration here.

B

Evaluation of the Circumstances

In this case, the detaining officers had several forms of corroboration of the anonymous tip. They knew (1) every physical detail given by the informant was corroborated by the officers’ observations, concerning three Hispanic males in a specifically described car at a particular location; (2) the location of the detention was one of the known high-volume narcotics dealing areas of the city, and was entirely consistent with that portion of the tip suggesting narcotics dealing; (3) the activity that the men were engaged in, conversing in the car, was consistent with the information in the tip (dealing drugs from that car), even though not innately suspicious in and of itself; and (4) some exigency existed because of the report of a crime in progress. Officer Righthouse was very familiar with the area in which the car was parked, having made hundreds of drug-related contacts in that specific park area. This knowledge could properly lend significance to otherwise innocuous facts or behavior. (People v. Limon, supra, 17 Cal.App.4th at pp. 532-533.)

Moreover, the nature of the reported activity, drug dealing in a park, was not particularly covert and did not have the characteristics of White’s or Gates’s travels, i.e., being unknown to outsiders and subject to future predictions by those in the know. The reliability of the informant thus did not have to be tested or confirmed in the same way as were the informants in those cases.

Here, although the tip related that these men were dealing drugs from that car, the officer did not testify that he observed actual drug dealing.⁴ Although there are many ways in which this could have been a stronger case in support of the detention (e.g., if there were a greater quantity of corroborating information, such as the officers’ observations of actual drug dealing, or greater quality of information, such as knowledge of the informant’s reliability), under the totality of these circumstances, the officers had adequate information on which to proceed. In light of their training and experience, it was reasonable for them to make an investigative detention of Ramirez, and there was no constitutional error.

While appellate courts many months after the fact might postulate other things the police could have or should have done under these circumstances, these officers acted reasonably based upon the information given to them and their own observations. Also, the intrusion was brief and minimal, and the contraband which was later discovered was the product of a voluntary consent. The magistrate and the trial court judge each correctly interpreted the facts and the law to uphold the police officers’ judgment call.

Disposition

Judgment affirmed.

Nares, J., concurred.

1 All statutory references are to the Penal Code unless otherwise indicated.

2 As a threshold matter, we first note Ramirez and his companions were already stopped when the police officers arrived. Thus, no detention had yet occurred when the police officers arrived at the scene and observed the car in the position as predicted by the anonymous tip. Clearly, the officers had the right to approach the parked vehicle in order to contact the occupants, and the detention occurred when the officers requested the occupants of the car to step out so they could pat them down for weapons. This was a valid request as the officers could reasonably have feared for their safety and were allowed to make sure the three men that they were contacting were not armed. (Pennsylvania v. Mimms (1977) 434 U.S. 106 [54 L.Ed.2d 331, 98 S.Ct. 330].)

3 In People v. Johnson, supra, 231 Cal.App.3d 1, the anonymous tip reported someone was selling or doing drugs in the hallway of a specific building. When the officers arrived at that building, they found the defendant strangely crouched over in a comer, peering down at them and saying nothing. The Court of Appeal held the officers had reasonable suspicion to detain Johnson. Acknowledging the tip there was less detailed than that in Alabama v. White, the court noted it must have been given by someone who had just been in the hallway of what the officers found to be a small, three-unit apartment building. The court reasoned the tip involving someone hanging out in the hallway concerned a more unusual activity than the mundane departure of a woman in Alabama v. White, giving it more reliability. Moreover, since the officers promptly responded to the report and saw the man in the hallway, not coming or going but crouched over in the comer, those observations of the dark hallway and the defendant’s odd position and mute demeanor reasonably suggested to the officers, experienced in rock cocaine arrests, that criminal activity might be afoot. (People v. Johnson, supra, 231 Cal.App.3d at pp. 11-12.)

4 On this record, we are unable to attach too much significance to the beer cans seen by the officer as he approached the car. The record does not reveal if the cans were open. Officer Righthouse testified when he got out of his vehicle, he immediately asked the three occupants of the target vehicle to step outside to pat them down for weapons as they were under detention for a narcotics investigation. Thus, although the officers may have observed a potential Vehicle Code violation in plain view as they approached the car, which they would have been entitled to investigate, it is unclear what role the beer cans played in the decision to detain, or what weight they may be given in an objective evaluation of the circumstances. (Veh. Code, § 23223; People v. Grant (1990) 217 Cal.App.3d 1451, 1458 [266 Cal.Rptr. 587].) Moreover, the argument the cans justified the detention is raised by the People for the first time on appeal.