People v. Dolly

53 Cal.Rptr.3d 803

40 Cal.4th 458

150 P.3d 693

The PEOPLE, Plaintiff and Respondent, v. Norman J. DOLLY, Defendant and Appellant.

No. S134505.

Supreme Court of California.

February 1, 2007.

George L. Schraer, under appointment by the Supreme Court, San Diego, and Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc J. Nolan, Donald DeNicola, Mary Sanchez and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

In People v. Wells (2006) 38 Cal.4th 1078, 45 Cal.Rptr.3d 8, 136 P.3d 810 (Wells), we held that an anonymous phone tip reporting a possibly intoxicated driver in a vehicle "`weaving all over the roadway " and accurately describing the vehicle and its location was sufficient to justify an investigatory detention, even though police, upon encountering the vehicle, were able to corroborate only the innocent details of the tip. (Id. at p. 1081, 45 Cal. Rptr.3d 8, 136 P.3d 810.) In this case, we consider whether an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is likewise sufficient to justify an investigatory detention. We conclude that the Fourth Amendment does not bar the police from taking necessary action to protect public safety in the circumstances of this case. We therefore affirm the Court of Appeal, which upheld the denial of the motion to suppress the loaded revolver found in defendant's vehicle.

BACKGROUND

Defendant Norman J. Dolly was convicted after a jury trial of being a felon in possession of a firearm and, after a bench trial, was found to have suffered a prior strike conviction within the meaning of the three strikes law. He was sentenced to four years in prison. The court also found defendant had violated probation and sentenced him to a consecutive eight-month term.

In this appeal, defendant challenges the denial of his motion to suppress the firearm and all statements he made concerning the firearm. The evidence at the hearing on the suppression motion revealed the following:

At 3:16 p.m. on April 17, 2002, an unidentified man placed a call to 911. The call was received by the California Highway Patrol and then transferred to the Los Angeles Police Department. The caller reported that a light-skinned African-American male had "just pulled a gun" on him and had mentioned a gang name. The caller said he felt the perpetrator "was gonna shoot me right there at that minute." According to the caller, the perpetrator had a bandage over his left hand, as though it had been broken, and was in the driver's seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevard at Ninth Avenue, near the recycling center. When asked whether he wanted to talk to the police when they arrived, the caller said, "No, no, I don't. I sure don't. Because if they find out I'm snitching, they're going to kill me around here." The call ended at 3:18 p.m.

At 3:20 p.m., the tipster-victim made a second call to 911. Identifying himself as "Drew," he said that he had just driven by the Nissan Maxima again and wanted to correct his description of the vehicle. It was black, not gray.

Around 3:20 p.m., Los Angeles Police Officer Frank Dominguez and his partner, Officer Goldstein, received a radio call about a man with a gun at Jefferson Boulevard and Ninth Avenue. The perpetrator was described as a light-skinned African-American male with a cast on his arm, in a possibly gray Nissan Maxima on the north side of Jefferson, and was said to have threatened the 911 caller with a gun. Two or three minutes later, the officers arrived at the scene and spotted a black Nissan Maxima parked on the north side of Jefferson, just east of Ninth. There were three people in the car. Defendant, who was sitting in the driver's seat, matched the description provided in the radio dispatch. He also had a cast on his left arm.

Officer Dominguez ordered defendant to exit the vehicle and lie down in the street with his hands at his side. He also ordered the two passengers out of the vehicle. Neither of them was wearing a cast. A loaded .38-caliber blue steel revolver was found underneath the front passenger seat. (At trial, Detective Delicia Hernandez testified that defendant, during a post-arrest interview, had admitted owning and possessing the revolver.)

Following the hearing, the superior court denied the motion to suppress, finding (1) that defendant's Fourth Amendment rights were not implicated because he was on probation subject to a search condition, and (2) that the officers had reasonable suspicion defendant had committed a firearms offense before effecting the stop.

A divided panel of the Court of Appeal affirmed in an opinion published in part. The panel ruled first that the detention and search could not be justified by the probation search condition "since the responding officers were not aware of [defendant's probation status or condition," citing People v. Hester (2004) 119 Cal. App.4th 376, 402-405, 14 Cal.Rptr.3d 377, and People v. Bowers (2004) 117 Cal. App.4th 1261, 1270-1271, 13 Cal.Rptr.3d 15. The Court of Appeal majority found instead that the detention and search were justified by reasonable suspicion that defendant had threatened the anonymous 911 caller with a gun. The dissenting justice, relying on the absence of police corroboration of the criminality alleged in the anonymous tip, would have granted the motion to suppress.

We granted review on the limited issue of whether the anonymous tip was sufficient to justify defendant's detention.

Discussion

An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693, 116 S.Ct. 1657, 134 L.Ed.2d 911.) A peace officer may also search the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, if the officer possesses a reasonable belief the suspect is dangerous and may gain immediate control of a weapon. (Michigan v. Long (1983) 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201.) In this case, defendant does not dispute that the officers were entitled to search the passenger companment if reasonable suspicion justified the initial detention. He argues only that the anonymous 911 call did not supply reasonable suspicion to effect the detention.

"The guiding principle in determining the propriety of an investigatory detention is `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine `the totality of the circumstances' in each case." (Wells, supra, 38 Cal.4th at p. 1083, 45 Cal.Rptr.3d 8, 136 P.3d 810; see also People v. Souza (1994) 9 Cal.4th 224, 227, 230, 36 Cal. Rptr.2d 569, 885 P.2d 982.) "Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip." (Wells, supra, 38 Cal.4th at p. 1083, 45 Cal.Rptr.3d 8, 136 P.3d 810.)

Indeed, we recently justified a detention based on an anonymous tip in Wells. There, an anonymous caller reported a 1980's-model blue van traveling northbound on Highway 99 north of Bakersfield and weaving all over the roadway. Two or three minutes after receiving the dispatch report, a California Highway Patrol officer spotted a blue van traveling northbound on Highway 99, activated his patrol car lights, and stopped the van to investigate whether the driver was impaired. The officer had seen nothing to indicate the motorist was intoxicated but, after conducting an investigation at the scene, arrested the motorist for driving under the influence. (Wells, supra, 38 Cal.4th at pp. 1081, 1083, 45 Cal.Rptr.3d 8,1313 P.3d 810.)

In upholding the detention, we observed that. "a citizen's tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety" (Wells, supra, 38 Cal.4th at p. 1083, 45 Cal. Rptr.3d 8,136 P.3d 810), and distinguished the United States Supreme Court's decision in Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (J.L.), which invalidated a detention based on an anonymous phoned-in tip that a young African-American man in a plaid shirt standing at a particular bus stop had a concealed weapon. "The high court held the tip insufficient to justify a brief detention and patdown search, absent some independent corroboration of the reliability of the tip and the tipster's assertion of illegal conduct. [Citation.] As the court stated, `[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L.'" (Wells, supra, 38 Cal.4th at p. 1084, 45 Cal.Rptr.3d 8, 136 P.3d 810.) At the same time, however, we noted that the J.L. court acknowledged the possibility that exigent circumstances, such as a report of someone carrying a bomb, might justify a stop and search "even without a showing of reliability." (J.L., supra, 529 U.S. at pp. 273, 120 S.Ct. 1375; see Wells, supra, 38 Cal.4th at p. 1084, 45 Cal.Rptr.3d 8,136 P.3d 810.)

After balancing the public interest in safety and the individual's right to personal security free from arbitrary interference by law enforcement officers (see People v. Thompson (2006) 38 Cal.4th 811, 827, 43 Cal.Rptr.3d 750, 135 P.3d 3), we determined in Wells that the relative urgency presented by drunk or...