P. v. Hosking

Filed 3/15/07 P. v. Hosking CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Dylan Hosking appeals from a judgment following his no contest plea to possessing methamphetamine. He contends the trial court erred when it denied his motion to suppress. We agree and reverse the judgment.

Background

The facts are taken from the hearing on defendants motion to suppress evidence. Around midnight on February 16, 2005, Redwood City Police Officer John Gary stopped to work traffic radar on East Bayshore Boulevard. Gary knew that the manager of a trailer park at 2053 East Bayshore had recently requested additional patrol checks for car burglaries and other suspicious activity in the neighborhood.^[1]

The road was bounded on the west by a sound wall adjacent to Highway 101 and on the east by trailer parks and industrial buildings. Officer Gary stopped in front of 2053 East Bayshore, near the entrance to the trailer park. Between six and 10 cars were parked on the east side of the street, but there was no vehicular or pedestrian traffic. The area was dark in some parts and well-lighted in others.

As Officer Gary pulled up to the curb he saw defendant appear on the road from between two parked cars. The officer approached defendant and asked to see his identification. Defendant complied, and at some later point Officer Gary ran a check on the license. The officer walked defendant to the area he had come from, about two or three cars in front of the patrol car, to ascertain whether there was any indication the parked cars had been burglarized. He then directed defendant to sit on the curb. Officer Gary testified he didnt give [defendant] any options at that point. Almost immediately thereafter, Officer Gary discovered another man who was partially hidden under a parked car.

Officer Dan Schillaci responded to Officer Garys call for backup. Officer Schillaci noticed signs that defendant was under the influence of a controlled substance, including rigid jaw and facial muscles, dilated pupils and an elevated heart rate. Defendant was arrested and Mirandized. He admitted he had smoked methamphetamine that evening and that he had a methamphetamine pipe in his car, which was parked nearby. A search of the car disclosed the pipe and a Ziploc bag containing approximately .24 grams of methamphetamine.

The suppression motion was argued and denied at the preliminary hearing. After defendants subsequent renewed motion based on the preliminary hearing transcript was also denied, he pled no contest to possession of methamphetamine pursuant to a negotiated plea agreement. The court suspended imposition of sentence and placed defendant on supervised probation. Defendant timely appealed.

Discussion

I. Standard of Review

Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrates express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness. (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We independently review the applicable law and its application to the facts (People v. Carter (2005) 36 Cal.4th 1114, 1140) and affirm the trial courts ruling if correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976.)

II. The Detention Was Unreasonable

The People concede defendant was detained when Officer Gary directed him to sit on the curb. We must consider whether that detention was reasonable and therefore constitutionally justified.

A detention is constitutionally reasonable if the circumstances known or apparent to the detaining officer 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. Daugherty (1996) 50 Cal.App.4th 275, 285.)  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 circumstancesthe whole picturemust be taken into account. Based upon the whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.  (People v.Souza (1994) 9 Cal.4th 224, 230, quoting United States v. Cortez (1981) 449 U.S. 411, 417-418.)

The circumstances known to Officer Gary here did not reasonably justify defendants brief detention. The sole ground for the detention was defendants presence on foot, late at night, near an area where car burglaries and other suspicious activities had been reported. Nothing in defendants appearance or behavior suggested to Officer Gary that he was in the area for a criminal purpose rather than an innocent one, such as walking to his car from the nearby trailer park. Gary stopped defendant because he was in the area late at night. This was insufficient to justify a suspicion that criminal activity was afoot and that defendant was involved in it. (See People v. Roth (1990) 219 Cal.App.3d 211 [the defendants presence at 1:20 a.m. in the deserted parking lot of a shopping center did not justify detention]; People v. Bailey (1985) 176 Cal.App.3d 402 [the defendant observed sitting in his car in the lot of a closed store known for drug use; circumstances did not support detention];see also In re Tony C. (1978) 21 Cal.3d 888, 896-897 [reports of recent burglaries did not support detention of two teenagers seen walking along the sidewalk of a residential neighborhood].)

The cases on which the People rely do not compel a contrary conclusion. In People v. Souza, supra, 9 Cal.4th at page 224, a detention was held valid because in addition to the vicinitys reputation as a high crime area, two people were standing near a parked car very late at night and in total darkness, and there was evasive conduct by the defendant and his two companions. Here, in contrast, there is no evidence that defendant exhibited evasive conduct or flight; nor does the evidence support a reasonable inference that defendant was loitering, as implied in Souza. (Id. at pp. 240-242.)

In People v. Foranyic (1998) 64 Cal.App.4th 186, the defendant was detained after an officer observed him riding a bicycle at 3 a.m. while carrying a large ax. As the Court of Appeal somewhat dryly noted, the defendant cannot suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. (Id. at p. 189.) While Foranyic correctly states that less is required to support a detention at 3 a.m., than would be required for the same action at 3 p.m. (id. at p. 190), it does not stand for the proposition that an individuals mere presence in a particular area late at night is sufficient to support a detention absent some articulable indication that he or she is up to no good. None appears to us on the record in this case.

In sum, while the late hour and the recent reports of crime in the area are certainly relevant to whether the detention was justified, without more those factors do not support a reasonable suspicion that defendant, who only walked out onto the street from between two parked cars, was involved in criminal activity. The trial court erred when it denied the motion to suppress.

Disposition

The judgment is reversed and the matter is remanded to the superior court. (See People v. Ruggles (1985) 39 Cal.3d 1, 13.)

_________________________

Siggins, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

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^[1] Officer Gary testified at the renewed hearing on the suppression motion that he later learned the request had in fact come from the manager of a neighboring trailer park at 3015 East Bayshore, about 250 feet down the road. Gary did not know whether he was given an incorrect address or recalled it incorrectly.