Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC648236
Premo, Acting P.J.
In a prosecution for attempted murder and related charges against real party in interest, Alberto Villalpando, respondent superior court granted Villalpando’s motion to suppress evidence that was seized without a search warrant. The People petition for a statutory writ of mandate. (Pen. Code, § 1538.5, subd. (o).) They argue that the evidence was seized during a consensual encounter or during a lawful detention. We suppose that there was a detention, but we conclude that the detention was lawful. We therefore grant the petition and direct respondent to vacate its order granting Villalpando’s motion and enter a new order denying it.
BACKGROUND
Witnesses reported a drive-by shotgun shooting in a high-crime, criminal-gang area committed from a maroon van by two people, one of whom wore a white T-shirt. San Jose Police Sergeant Ken Davis heard the report over the police radio at approximately 10:48 p.m. He drove to the area and responded to a suspect vehicle found by another officer close to the scene of the crime. He saw an expended shotgun shell inside the vehicle. He canvassed the area and saw no one except two people walking on the sidewalk approximately one block from the van. One wore a white T-shirt and they both looked like juveniles. It was 11:37 p.m. and thus past juvenile curfew (curfew is 10:00 p.m. for 15-year-old and under juveniles and 11:30 for 16- and 17-year-old juveniles). Sergeant Davis pulled behind the two and illuminated them with his spotlight from approximately 20 to 30 feet. The individuals stopped. Sergeant Davis parked his car and approached them on foot. When he was approximately 10 feet from them, he could smell an odor of alcohol coming from them. He asked how old they were. Villalpando said, “20.” Sergeant Davis nevertheless believed that Villalpando looked younger than 18. Villalpando had red bloodshot eyes, dry mouth and lips, and was slightly nervous. His companion wore a white T-shirt and was 14 years old. Both had an odor of alcohol and marijuana. Sergeant Davis, who was the only officer on the scene, decided to handcuff both of them for officer safety reasons, for the curfew violation, and to investigate defendant’s age. Witnesses arrived and identified both as the drive-by shooters.
At the hearing, the following colloquy occurred:
Villalpando moved to suppress all observations of the officers, any statements made by him, the eyewitness identifications of him, the results from gunshot residue testing, methamphetamine discovered on him, and any and all observations of him arising out of a claimed unlawful detention. The People opposed the motion, arguing that the initial encounter was consensual and that Sergeant Davis had reasonable suspicion to support an investigative detention. At the conclusion of the hearing, the People argued that the individuals were properly detained in order to further an investigation related to the shooting and to detain for the crime of contributing to the delinquency of a minor. Respondent court commented that the People were seeking to have it both ways by relying to justify the detention on Sergeant Davis’s belief that Villalpando was a minor out after curfew and Villalpando’s actual age to support a contributing theory. In a written order denying a motion for reconsideration, respondent court found that the People had failed to carry their burden to prove a consensual encounter and concluded that the detention was unlawful. As to the conclusion, it explained the following.
“The People have argued that Sergeant Davis’ belief in a curfew violation was reasonable. However Defendant was almost 21 years old at the time of the detention and Sergeant Davis did not articulate why he thought he was 17 or younger. The People have offered no justification for Sergeant Davis’ mistake and have offered no facts showing his erroneous belief was reasonable. There is no evidence of any particular training or experience and no explanation for Sergeant Davis’ substantial miscalculation. On the evidence presented the only conclusion is that, due to inexperience or inability, Sergeant Davis is not able to accurately estimate age. A detention of Defendant was neither reasonable nor justified under these circumstances. [¶] While Defendant’s companion . . . was under 18, this does not justify a curfew detention because [the companion] was in the company of an adult. [Citation.] Although Sergeant Davis saw one element of a potential curfew violation detentions are never justified so that law enforcement can ‘check out’ unknown or speculative possibilities. An officer seeing the element of driving cannot pull over every driver just to check that they are not under the influence. An officer seeing the element of being in public cannot detain every citizen just to make sure then [sic] are not concealing a weapon. And so too an officer seeing a minor in the company of an adult cannot detain them just to check that they are not on a legitimate errand or to verify that the adult is sanctioned by the parent or guardian. [¶] The People’s other offered justification is that a detention was reasonable because one of the two had a white shirt and a white shirt was worn by a perpetrator of a shooting an hour earlier. . . . In this case an hour had elapsed and even walking at a leisurely pace means a radius of three miles and a total area of 28 square miles. The suggestion that every male with a white shirt within 28 square miles could be detained must be rejected. The description was too vague, and too much time had elapsed, to justify detaining Defendant.”
DISCUSSION
Both the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution prohibit seizures of persons, “including brief investigative stops, when they are ‘unreasonable.’ [Citations.] . . . A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away.” (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).)
“To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention.” (People v. Conway (1994) 25 Cal.App.4th 385, 388 (Conway).) But, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .” (In re Tony C. (1978) 21 Cal.3d 888, 894.)
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
“The touchstone of analyzing a detention, or for that matter any Fourth Amendment issue, is reasonableness.” (People v. Foranyic (1998) 64 Cal.App.4th 186, 188 (Foranyic).) That standard is of particular importance when considering the concept of “ ‘reasonable suspicion,’ ” which governs detentions, because that term “does not lend itself to ready definition.” (Id. at pp. 188-189.) Indeed, “[t]he concept of reasonable suspicion, like probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ ” (United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow).) “In evaluating the validity of a stop . . . [a reviewing court] must consider ‘the totality of the circumstances--the whole picture.’ [Citation.] As [stated] in [United States v. Cortez (1981) 449 U.S. 411, 418]: [¶] ‘The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers’ ” (Id. at p. 8.)
Here, the objective facts are that (1) Sergeant Davis began investigating a nighttime drive-by shotgun shooting in a high-crime area committed by two people in a maroon van, (2) one of the suspects wore a white T-shirt, (3) Sergeant Davis found a maroon van containing a shotgun shell shortly after the crime and near the scene of the crime, (4) Sergeant Davis saw no one in the area except two people, one of whom wore a white T-shirt, (5) Sergeant Davis believed that the two people were juveniles out after curfew, and (6) Sergeant Davis detained the two people to investigate.
Villalpando argues that the physical description of the suspects (one white T-shirt) was insufficient to justify a detention. But the objective facts, taken together, are arguably suspicious even apart from Sergeant Davis’ belief that Villalpando was violating juvenile curfew. Villalpando was walking at night in a high-crime area shortly after a two-person shooting near a vehicle that had likely been used in the shooting with a companion who wore a shirt similar to one of the shooters; no one else was in the area. Thus, at a minimum, an officer could entertain a reasonable suspicion that Villalpando was connected to the shooting.
“[T]ime of night” is a “pertinent factor in assessing the validity of a detention.” (Souza, supra, 9 Cal.4th at p. 241.) Further, an officer is “not required to ignore the relevant characteristics of a location in determining whether the circumstances [were] sufficiently suspicious to warrant further investigation.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) And “While 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.” (People v. Limon (1993) 17 Cal.App.4th 524, 532.)
We reiterate that the standard by which we must judge police conduct here is not whether Sergeant Davis had probable cause for an arrest but rather whether a reasonable suspicion that criminal activity was afoot was justified. (Conway, supra, 25 Cal.App.4th at p. 388; Souza, supra, 9 Cal.4th at p. 241.) Again, that innocent explanations could be offered for Villalpando’s behavior did not deprive Sergeant Davis of the right to entertain a reasonable suspicion that Villalpando was or had been engaged in criminal behavior. (Foranyic, supra, 64 Cal.App.4th at p. 189.)
“[I]n the course of training and in the exercise of their duties, experienced officers develop an ability to perceive the unusual and suspicious which is of value in the performance of their task of protecting the rights and safety of law abiding citizens. Indeed the failure of an officer to investigate conduct suggestive of criminal activity based upon his expertise acquired by training and experience would constitute a breach of his obligation to properly discharge the duties of an officer of the law.” (People v. Peterson (1978) 85 Cal.App.3d 163, 168-169.)
Under the totality of the circumstances (Sokolow, supra, 490 U.S. at pp. 7-8), we conclude that Sergeant Davis knew facts which, viewed objectively, would cause a reasonable officer to suspect that criminal activity involving defendant was afoot so as to justify detaining defendant for the purpose of resolving any ambiguity. (Cf. Souza, supra, 9 Cal.4th at p. 242.)
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting Villalpando’s motion to suppress and enter a new order denying the motion.
WE CONCUR: Elia, J.,Duffy, J.
“[Defense counsel]: Do you recall what it was that you said to them when you first started walking towards them?
“[Sergeant Davis]: Not specifically, but I asked them their age.
“[Defense counsel]: And when you had a chance to see Mr. Villalpando, were you able to see that he probably was more than 18 years old?
“[Sergeant Davis]: No. He still looked quite young.”