Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Stanislaus County, No. 1213646, Donald E. Shaver, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
In exchange for a lid of seven years, appellant, Gregory Eugene Harrison, pled no contest to possession of heroin (count I/Health & Saf. Code, § 11350), possession of methamphetamine (count II/Health & Saf. Code, § 11377), and destroying or concealing evidence (count III/Pen. Code, § 135). Harrison also admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). After Harrison waived a probation report, the court sentenced him to an aggregate seven-year term, the midterm of two years on count I, doubled to four years because of his prior strike conviction, a concurrent four-year term on count II, and three one-year prior prison term enhancements.
On appeal, Harrison contends the court erred when it denied his motion to suppress. We will affirm.
FACTS
On August 12, 2006, Stanislaus County Sheriff deputies arrested Harrison after they found small quantities of heroin and methamphetamine in a wallet he discarded after being detained.
On November 7, 2006, Harrison filed a motion to suppress alleging that he was detained illegally.
On February 5, 2007, at a hearing on this motion, Michele Ott testified that on August 12, 2006, at approximately 8:23 p.m. the Stanislaus Regional 911 Dispatch Center received a call regarding a family fight or assault involving a female identified as Sarah Jean Worton and a male. The call came from space 67 at a trailer park located on South Seventh Street in Modesto. Worton was described as a white female, 40 to 43 years old, wearing white shorts, and riding a red bicycle. At 8:28 p.m. the 911 dispatch center received a supplemental report that an argument was occurring at space 67 possibly involving an 80-year-old man named Shrill and an unknown woman.
Deputies Frank Alves and William Killian responded to the call and arrived on the scene at 8:33 p.m. Deputy Alves testified that upon his arrival at the park he saw two women (one of which was being loud) and two men, including Harrison, standing about 40 yards from space 67. A bicycle was next to them. Harrison, who was wearing shorts and no shirt, looked up at Alves and began walking at a fast pace away from him. Alves told Harrison to come back but instead Harrison started running and appeared to throw something down. Alves went around a laundry area and climbed over a chain link fence as Alves kept telling him to come to him. Harrison then went into a fenced yard at space 67 and shut the gate behind him. Alves approached Harrison and told him to come back outside. Harrison responded that he did not know what Alves was talking about. Harrison then stepped outside the fenced yard and was detained by Alves.
The deputies did not find anything in the area where Alves saw Harrison appear to toss something.
As Alves walked Harrison back, Harrison reached into his waistband, took out a wallet, and threw it against the laundromat wall. Alves picked up the wallet and asked Harrison why he threw it. Harrison said it did not belong to him. After placing Harrison in a patrol car, Alves searched the wallet and found Harrison’s identification and small quantities of heroin and methamphetamine.
Deputy Alves also testified that when responding to a call involving any type of family disturbance there is always a concern for officer safety. Alves further testified that the call originated from a high crime area and he was there almost nightly on a variety of calls including those about fights and drug use.
After hearing counsels’ arguments, the court denied the motion to suppress.
DISCUSSION
Harrison contends he did not match the description of the person involved in the reported dispute and that his conduct in walking away from Deputy Alves did not provide Alves with a lawful basis for detaining him. He further contends the search of his wallet was unlawful because he discarded it in response to being detained unlawfully by Deputy Alves. Thus, according to Harrison, the court erred when it denied his motion to suppress. We will reject Harrison’s claim of error.
“On a number of occasions since its landmark decision in Terry v. Ohio[] [1968] 392 U.S. 1, 88 S.Ct. 1868, the high court has reiterated that a police officer’s seizure of a person need not in all cases be justified by probable cause to arrest for a crime. [Citation.] Probable cause to arrest exists when the facts and circumstances known to the arresting officer ‘“‘warrant a [person] of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested].”’ [Citations.] By contrast, the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]
“In United States v. Cortez[] [(1981)] 449 U.S. 411, 101 S.Ct. 690, the high court stressed the importance of taking into account ‘the totality of the circumstances’ in determining the propriety of an investigative stop or temporary detention: ‘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.’ [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 230.)
“An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. [Citations.]” (People v. Souza, supra, 9 Cal.4th at p. 240.) So is flight. (Id. at p. 235.)
In Illinois v. Wardlow (2000) 528 U.S. 119 (Wardlow) an officer traveling in a four-car-caravan of police officers that was converging on an area of high narcotics trafficking saw the defendant standing on a corner holding an opaque bag. Upon seeing the officer, the defendant ran but was eventually detained. A search of the defendant uncovered a gun in the bag. In upholding the detention based on the defendant’s presence in the area and his flight upon seeing the officer, the Supreme Court stated:
“In this case ... it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. [Citations.] We conclude [the officer] was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.” (Id. at pp. 124-125.)
Harrison was detained when he submitted to the authority of Officer Alves by coming outside of the gated yard. (California v. Hodari D. (1991) 499 U.S. 621, 625-626 [a seizure occurs when a subject submits to a show of authority].) As in Wardlow, the area where the detention occurred was a high crime area and, like the defendant in Wardlow, upon seeing Deputy Alves, Harrison fled from the officers, first walking briskly away and then running when Alves called out for him to wait. However, Harrison’s conduct was more suspicious than the defendant’s conduct in Wardlow because Harrison appeared to throw something down as he started to run and he falsely told Deputy Alves he did not know what Alves was talking about. Additionally, by entering the yard belonging to space 67, Harrison associated himself with the trailer where the 911 call originated, raising the possibility that he might have been involved in the earlier incident. Accordingly, we conclude that Deputy Alves lawfully detained Harrison.
Harrison cites People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia) to argue the trial court erred when it denied his suppression motion. In Perrusquia two police officers saw defendant sitting in the driver’s seat of an idling car parked in a 7-Eleven parking lot in a high crime area. As the officers stood behind the car they saw the defendant crouched low in the driver’s seat. They approached the car from behind and heard the defendant “fumbling” with something followed by a “thud” on the floorboard as if something had dropped. The defendant saw one officer in the rear view mirror, turned the car off, and exited the vehicle. He then “aggressively, [and] quickly” tried to pass the officer. Over, the defendant’s objections, the officer patted him down and found a handgun tucked in his waistband. An ensuing search uncovered a second handgun and a small quantity of methamphetamine. In finding the above circumstances insufficient to justify the detention, the appellate court stated: “[H]ere, the hour was not particularly late, and the store was, apparently, open. [Citation.] There were no immediately highly suspicious facts such as the flight of a defendant's four companions. [Citation.] Indeed, the district attorney does not cite any case where the facts are quite as thin and nonspecific as they are here.” (Id. at p. 234.)
Perrusquia is distinguishable because unlike the officers in that case, here the deputies were investigating a recent report of an assault when they first saw Harrison. Further, unlike Harrison, the defendant in Perrusquia did not engage in an obvious attempt to flee from the officer. Nor did the defendant appear to throw anything down as he fled or make an obviously false statement. In any event, in Wardlow the United States Supreme Court found that flight and the character of the neighborhood as a high crime area were sufficient to justify a temporary detention. Here there are additional circumstances that justified Harrison’s detention.
Harrison also cites People v. Pitts (2004) 117 Cal.App.4th 881 (Pitts), for the proposition that several circumstances that individually do not justify a detention “cannot be combined to form the basis of a reasonable suspicion.” In Pitts, the defendant was detained by a police officer after he was seen walking near a house where the officer suspected drug activity was occurring. (People v. Pitts, supra, 117 Cal.App.4th at pp. 883-884.) The Pitts court found that several circumstances present in that case were individually or collectively insufficient to justify the defendant’s detention. (Id. at pp. 886-890.) Pitts is not controlling because it did not involve any of the circumstances present here, e.g., flight, a high crime area, a furtive movement, and a false statement, two of which, as noted above, the Wardlow court found sufficient alone to justify a detention. We conclude that the trial court did not err when it denied Harrison’s motion to suppress.
DISPOSITION
The judgment is affirmed.