Filed 12/24/19 P. v. Harriman CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY MICHAEL HARRIMAN,

Defendant and Appellant.

C089402

(Super. Ct. No. 62164808A)

Police officers detained defendant Anthony Michael Harriman at gunpoint following a neighbor’s call that a suspicious person was going in and out of a house and car. The detention was based on the call, knowledge that the house in question was an “offender house,” the late hour on a Tuesday night, and the officers’ observation of defendant walking back and forth between the house and car while having a meal. After he was detained, defendant consented to a search of his person and car. The search revealed drugs and other illegal items.

At the preliminary hearing, the trial court found sufficient evidence to justify a count of possession for sale of a controlled substance, possession of a controlled substance, receiving stolen property, and possessing drug paraphernalia. It also denied a motion to suppress the evidence found during the search. On a later date, at a change of plea hearing, the prosecution orally added one count of attempting to bring a controlled substance into jail, which allegedly occurred the same day as the detention. Defendant pled no contest to the added count and the prosecution dismissed the remaining charges.

On appeal, defendant contends the officers did not have reasonable suspicion to detain him, and the evidence derived from that detention should be excluded under the fruit of the poisonous tree doctrine. The People argue the officers had reasonable suspicion, and even if they did not, defendant freely and voluntarily consented to the search rendering the evidence admissible. The People appear to agree that the evidence supporting the judgment flowed from the detention; we, therefore, assume the same.

We conclude the detention was unconstitutional and the evidence obtained inadmissible because the officers lacked articulable facts to show defendant was connected to activity related to a crime. We, accordingly, reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Around 11:30 p.m. on a Tuesday night, Roseville Police Officers Chris Ciampa and Kyle Franklin responded to a call that a “suspicious person[] [was] going in and out of a car and in and out of the house.” Officer Ciampa testified the house they were called to was a “known offender house in the neighborhood.” He estimated there had been about “42 calls for service [at that house] in the [prior] three to four months.”

When the officers arrived at the house, they parked and approached on foot. Officer Ciampa noted two cars parked in the driveway. One of the cars had the driver’s side door open and a male was going in and out of the car. The male, later identified as defendant, had a cigarette in his mouth, a cigarette or marijuana joint in one hand, and a black object in the other hand. The officers watched defendant for one and one-half minutes to two minutes before approaching. Officer Ciampa testified defendant, “mov[ed] about the car, kind of standing at the car. There was a soda on top of the car, so it would look like he was kind of eating Taco Bell and drinking a soda that he had there as well, kind of going in and out of the car, either getting something out of the car, or loading the bag that was just outside of the car.”

The officers approached defendant with guns drawn and said, “Roseville Police, show me your hands.” Defendant showed his hands, and as he did, the black object, later identified as a digital scale, dropped from his hand. Defendant then consented to a search of his person and car, during which officers found drugs and other illegal items.

At the suppression hearing, defendant argued the facts testified to by Officer Ciampa did not rise to the level of reasonable suspicion because there were no “articulable facts that a crime [wa]s occurring.” The prosecutor responded there were four factors that would lead a reasonable person to believe criminal activity was afoot: “We have the fact that it’s a known drug house. We have the fact that the call is received of people going in and out of the house and in and out of the car described as suspicious at 11:35 at night. We have Officer Ciampa arriving and watching the defendant essentially engaged in behavior that corroborates what the reporting parties stated. And the other factor that I would mention, if I didn’t already, is that this was a Tuesday night, January 29th. It’s not a weekend night where one would expect people to be having parties. We have the defendant’s behavior, the reputation of the location, and the time of night and day of the week.”

Before making its ruling, the trial court asked the prosecution to clarify “the specific articulable facts” upon which it relied. After the prosecution listed the four factors again, the court said it “listened very carefully, and the reason the Court asked the questions it did was because the Court does find that this, from a factual basis, is a very close call as to whether there was what the Court believes is reasonable suspicion present to detain the defendant at the date and the time and location where it occurred and the manner in which the detention occurred.” The court then ruled as follows: “Based on the testimony that’s been presented, the Court does find that given the unrefuted testimony that this particular location . . . at the time was a location where there was a very high volume of traffic of — and a lot of other suspicious activities and a history of various and sundry illegal activity ongoing, the Court finds that that knowledge by the responding police officers did justify detaining the defendant in the manner in which he was detained . . . .”

DISCUSSION

“Defendant, as the moving party, had the initial burden of proving a warrantless search or seizure occurred. [Citation.] There was no warrant in this case, so the burden shifted to the prosecution to show any warrantless searches or seizures were justified under the Fourth Amendment to the United States Constitution. [Citation.] ‘[T]he controlling burden of proof at suppression hearings . . . [is] proof by a preponderance of the evidence.’ ” (People v. Flores (2019) 38 Cal.App.5th 617, 626.)

“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.’ ” (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.) Here, the parties do not contest the trial court’s factual findings.

A detention occurs when an officer uses a show of authority or physical force in such a way that a reasonable person would not feel free to leave. (Brendlin v. California (2007) 551 U.S. 249, 254 [168 L.Ed.2d 132, 138].) A detention is lawful “when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)

“To legally detain an individual because of ‘suspicious circumstances,’ the prosecution must establish on the record that at the moment of the detention, there were specific and articulable facts, which reasonably caused officers to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity.” (People v. Bower (1979) 24 Cal.3d 638, 644.) “Thus, a reasonable suspicion justifying a detention is ‘simply . . . “a particularized and objective basis” for suspecting the person stopped of criminal activity.’ [Citation.] So long as the facts known to the officer reasonably cause him or her to suspect the person he or she intends to detain might be or has been involved in criminal activity, the detention is lawful.” (People v. Flores, supra, 38 Cal.App.5th at p. 628.)

As the People do not dispute a detention occurred, we start by considering whether the officers had reasonable suspicion to effectuate the detention. Defendant argues there were insufficient facts to support a showing of reasonable suspicion because the time and location are not dispositive factors, and the officers had no articulable facts showing criminal activity. The People respond four factors support reasonable suspicion: (1) location (a known offender residence); (2) time of night; (3) the call by the neighbor; and (4) defendant’s behavior. We agree with defendant that these factors do not amount to reasonable suspicion.

The People argue Leyba supports the proposition that the time of night and location justify reasonable suspicion. (People v. Leyba (1981) 29 Cal.3d 591.) We disagree. In Leyba, around 11:30 p.m., an officer observed a car parked at a school. (Id. at pp. 594-595.) The officer knew the school was closed and there were a number of burglaries and other gang related activities at the school. (Id. at p. 595.) Another car then drove by the school and blinked its headlights on and off several times. (Ibid.) The parked car responded by blinking its headlights on and off and then drove out of the school parking lot, following the car that just drove by. (Ibid.) One of the officers believed the blinking headlights was a signal to the occupants in the parked car that there was police presence. (Ibid.)

The court held there was reasonable suspicion due to “[t]he 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 . . . [the officer’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.” (People v. Leyba, supra, 29 Cal.3d at p. 600.)

This case is different from Leyba. There is a difference between a parked car at a closed school around midnight, which lends itself to suspicious activity because there are few reasonable explanations for activity at a school at that hour, and a parked car in front of a house around midnight, which could be explained by a myriad of noncriminal reasons such as returning home from a late flight, a late movie, or working the nightshift. The People argue there was evidence of “illegal activity” because, “it was nearly midnight on a Tuesday, a time when most people, [the People] submit[], are in bed during a normal work week.” But our Supreme Court has consistently held that “the ‘nighttime factor’ is not ‘activity’ by a citizen, and . . . has warned that this factor ‘should be appraised with caution’ [citation] and that it has, at most, ‘minimal importance’ in evaluating the propriety of an intrusion.” (People v. Bower, supra, 24 Cal.3d at p. 645, fn. omitted.)

We agree the cases cited by defendant — concluding the time and location of an encounter, without more, do not create reasonable suspicion — are analogous to this case: People v. Medina (2003) 110 Cal.App.4th 171 and People v. Perrusquia (2007) 150 Cal.App.4th 228.

In Medina, officers lawfully pulled the defendant over for a broken taillight. (People v. Medina, supra, 110 Cal.App.4th at p. 174.) The officers ordered him out of the car and told him “to place his hands behind his head, walk backwards toward [them], and then face the adjacent wall.” (Id. at p. 175.) The defendant complied with each request without hesitation. An officer then grabbed his hands, asked if he had any weapons, and conducted a patsearch. (Ibid.) The officers’ motivation for the search was the “ ‘high-gang location’ ”; there was nothing specific about the defendant indicating he was armed. (Ibid.) The Court of Appeal rejected the People’s argument that the combination of the time of day and location justified the stop. (Id. at p. 177.) The court relied on Bower, in which our Supreme Court explicitly instructed that “ ‘nighttime’ ” and areas of “ ‘high crime’ ” are of “ ‘minimal importance’ ” and should be appraised with “ ‘caution.’ ” (Ibid.; People v. Bower, supra, 24 Cal.3d at p. 645.)

In Perrusquia, officers knew of several robberies at 7-Eleven stores in a particular neighborhood. While on patrol, officers observed the defendant idling in his car at a 7-Eleven. (People v. Perrusquia, supra, 150 Cal.App.4th at pp. 230-231.) When the officers approached the front of the car, they heard a loud thud. (Id. at p. 231.) The defendant exited the car and, after initially refusing the officers’ request for his identification, returned to the car for his identification. (Ibid.) The officers then asked if they could conduct a patsearch. (Ibid.) When defendant declined, the officers took hold of his wrists and arms and conducted a search of him. (Id. at pp. 231-232.)

The court held reasonable suspicion “cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. [Citation.] Even recent, specific crimes, without additional factors specific to the defendant, are not sufficient.” (People v. Perrusquia, supra, 150 Cal.App.4th at p. 233.) The robberies were “unrelated to defendant,” as were the facts that the area was a “high-crime” and “gang” area. (Ibid.) The court considered facts specific to the defendant and noted the officers’ reliance on the place and the time of night were insufficient. (Id. at pp. 234-235.)

The People contend this case is distinguishable because, in Perrusquia, the defendant was lawfully parked at the open store and it was not particularly late at night. However, the People fail to draw adequate factual distinctions. First, there were no facts to suggest defendant was not lawfully parked in the driveway of the house. Second, the officers in Perrusquia arrived at the store at 11:26 p.m. — four minutes before the officers were dispatched in this case at 11:30 p.m. (People v. Perrusquia, supra, 150 Cal.App.4th at p. 231.)

As explained in Medina and Perrusquia, the People’s reliance on the location being “a known offender house” to show reasonable suspicion is unsupported. Our Supreme Court has aptly explained: “The ‘high crime area’ factor is not an ‘activity’ of an individual. Many citizens of this state are forced to live in areas that have ‘high crime’ rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual.” (People v. Bower, supra, 24 Cal.3d at p. 645.)

Finally, the People contend defendant’s behavior matched the call to service. The call stated a “suspicious person[] [was] going in and out of a car and in and out of the house.” All the officers saw was defendant with fast food on the roof of his car and walking back and forth between the car and the house. We fail to see how those activities give rise to defendant doing something suspicious relating to criminal activity. The People argue “[t]he only way for the officers to satisfy themselves that [defendant] (or whoever else happened to be going in and out of the house) was not engaged in illegal activity, [the People] submit[], was to go up to that person and briefly detain that person to find out why he or she was there, what [he or she] w[as] doing, and whether or not it constituted ongoing criminal activity.” However, that is not the law. Officers must have specific articulable facts that defendant was, at the time of the detention, engaged in activity related to a crime. (People v. Bower, supra, 24 Cal.3d at p. 644.) “Reasonable suspicion must rest on objective particulars tying a particular person to criminal activity, rather than on a mere ‘hunch’ that something is odd or unusual about the person detained.” (Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766, 780, italics added.)

We agree with established law that an officer must point to specific, articulable facts about a particular defendant that cause an officer to believe there is criminal activity and as a result, “no stop or detention is permissible when the circumstances are not reasonably ‘consistent with criminal activity’ and the investigation is therefore based on mere curiosity, rumor, or hunch.” (In re Tony C. (1978) 21 Cal.3d 888, 894.)

The People assert that, even if the initial detention was unlawful, the evidence seized by the officers was not subject to the exclusionary rule because defendant freely and voluntarily consented to the search. However, as we concluded, the initial detention was unlawful and the evidence seized after the search is inadmissible under the exclusionary rule. (Wong Sun v. U.S. (1963) 371 U.S. 471, 485 [9 L.Ed.2d 441, 454].) And as the People admit, “it is often the case that when a consent to search is given immediately following an illegal detention, that consent is ‘inextricably bound up with the illegal conduct and cannot be segregated therefrom.’ ” (Citing People v. Haven (1963) 59 Cal.2d 713, 719.)

DISPOSITION

We reverse the judgment.

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Hoch, J.