Opinion
A146696
05-04-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE J. JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN224293)
San Francisco police officers observed the defendant, Jose J. Jimenez, alone on a city street at 3:00 a.m. about two blocks from, and walking in a direction generally away from, a freshly reported robbery. Jimenez was detained at gunpoint, ordered to the ground, and handcuffed. A subsequent search of Jimenez's person led to discovery of the robbery proceeds. Jimenez's motion to suppress all evidence resulting from his seizure was denied. We affirm.
I. BACKGROUND
On June 11, 2015, at about 3:00 a.m., Officer Christopher Galligan and his partner were patrolling the Mission District of San Francisco in uniform and in a marked patrol car. As they drove south on Mission Street at about the intersection with 20th Street, they heard a radio call for officers to respond to a specified location to investigate an armed robbery. Although Galligan did not recall being provided a description or number of suspects, the recorded call described the suspects as two White males about 25 years old.
Galligan testified the location was 23rd and Bartlett Streets, but the recorded call said the cross street was Valencia, one block west of Bartlett.
Galligan turned right on 22nd Street, travelling west toward Bartlett Street, and spotted Jimenez walking north on Bartlett toward 22nd, a direction that roughly led away from the reported location of the robbery. Bartlett is a residential street and a few businesses are in the area of 22nd Street. Jimenez was the only person observed on the street. In his police report, Galligan described Jimenez as a Latino male about 20 years old. The trial court found Jimenez had a "very fair" complexion and could be mistaken for a White male. Galligan stopped the patrol car at the corner of Bartlett and 22nd, blocking Jimenez from crossing 22nd Street. The vehicle's two spot lights and overhead red light shone on Jimenez, who was facing the officers from about 20 feet away.
When Jimenez first saw the patrol vehicle, he made eye contact with the officers then lowered his head and continued north on Bartlett. When the officers exited the vehicle, Galligan's partner physically blocked Jimenez's path. Galligan pointed his gun at Jimenez and kept it trained on Jimenez throughout the encounter. Jimenez looked at the officers, raised his hands in the air, and slowly took a couple of steps backward on 22nd Street. Galligan commanded Jimenez to stop and lie on the ground. Galligan heard a radio call that a male had been found nearby who was down, bleeding, and needed an ambulance. Galligan testified that the broadcast said the man was midblock on Bartlett between 22nd and 23rd, about 100 yards from where Jimenez was stopped, but the recorded call apparently placed the location at the intersection of Bartlett and 23rd. Galligan testified the dispatch said a gun had been found, but the recorded dispatch message did not mention a gun. Galligan handcuffed Jimenez. Less than 30 seconds passed between the officers' initial encounter with Jimenez and his handcuffing.
After Jimenez was handcuffed, Galligan lifted him up and walked him to the patrol vehicle to secure him because other criminal suspects might be in the area. As he walked Jimenez to the car, Galligan observed a large amount of blood on Jimenez's hands, shorts and socks. While being escorted to the patrol car, Jimenez volunteered the statement: "What's up, dude? My friend is hurt. I don't have any guns or weapons on me. Search me." When they arrived at the patrol car, Galligan searched Jimenez and found a watch and two cellphones on his person. The watch and one of the cellphones were later identified as property of the robbery victim. Less than five minutes passed between the officers' initial contact with Jimenez and his placement in the patrol car.
Jimenez was charged by information with second degree robbery of a watch and cell phone (Pen. Code, § 211), receiving or buying stolen property (id., § 496, subd. (a)), giving false information to a police officer (id., § 148.9, subd. (a)), and possession of an assault weapon (id., § 30605, subd. (a)). As to the robbery count, it was alleged Jimenez was armed with a special firearm within the meaning of Penal Code section 12022, subdivision (a)(2).
Jimenez moved to suppress all evidence obtained as a result of his warrantless arrest. He argued Galligan lacked reasonable suspicion to detain him or probable cause to arrest him. In a tentative ruling, the court ruled Galligan had reasonable suspicion to detain Jimenez because the officer had heard reports of an armed robbery in the area by two young White males; shortly thereafter he spotted Jimenez, who was light-skinned, walking away from the vicinity of the robbery at 3:00 a.m. with no one else around; Jimenez did not immediately comply with the officer's commands but took a couple of steps backward; Galligan saw blood on Jimenez's shorts when he approached him; and Galligan heard a dispatch about a man found bleeding nearby before he reported to other officers that Jimenez had been detained. Jimenez argued the applicable standard was probable cause because he was arrested when Galligan pointed a gun at him, ordered him to the ground, handcuffed him, and then walked him to the vehicle. He argued the officers lacked probable cause because they simply made a "wild guess" that Jimenez was tied to the robbery based on his mere proximity to the scene of the crime, which was a full two blocks away according to the recorded call. Finally, he contested the prosecutor's characterization of Jimenez's response to encountering the officers as "furtive gestures." In its final ruling, the court stated: "[T]he police had a reasonable, articulable suspicion that a crime had been committed when [Jimenez] was detained. After he was detained, [Jimenez] made a statement that was unsolicited and unprompted. It appears to me that there was no search at that point so that even if perhaps there was a finding that the detention was unwarranted, there's no state action and nothing that [t]his Court would bar. But we don't get that far because I do believe that the police had a reasonable, articulable suspicion." The trial court denied the motion to suppress.
A jury found Jimenez guilty of second degree robbery and giving false information to a police officer. It found the special firearm enhancement of the robbery charge not true, but found true a lesser enhancement that a principal in the crime was armed with a firearm. The jury found Jimenez not guilty of possessing an assault weapon and not guilty a lesser charge of that he carried a loaded firearm. The charge of receiving or buying stolen property was dismissed. The court sentenced Jimenez to three years' probation on condition he serve one year in county jail.
II. DISCUSSION
Jimenez argues the trial court erred in denying his motion to suppress. He contends he was arrested as soon as he was stopped and the People have forfeited any argument the seizure was supported by probable cause because they argued in the trial court only that the seizure was a detention supported by reasonable suspicion. We affirm.
As a preliminary matter, we reject Jimenez's forfeiture argument. A case Jimenez cites in support of his argument explains: "Ordinarily, the prosecution cannot justify a search or seizure on appeal on a theory that was not presented to the trial court. [Citations.] Indeed, not even the appellate court itself can raise a new Fourth Amendment theory sua sponte. [Citations.] [¶] This rule is subject to exceptions, however. . . . [¶] [T]he rule does not apply 'where there does not appear to be any further evidence that could have been introduced to defeat the theory in the trial court and therefore the question of application of the new ground to a given set of facts is a question of law.' " (People v. Watkins (1994) 26 Cal.App.4th 19, 30-31.) Here, the evidence presented on reasonable suspicion is equally relevant to probable cause, so we are not barred from considering whether the record demonstrates the officers had probable cause to arrest Jimenez, assuming an arrest occurred. We thus turn to the question of whether Jimenez was detained or arrested and whether the seizure was justified under constitutional principles.
"The federal Constitution's Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. (Cal. Const., art. I, § 13.) '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, quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) . . . [¶] When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. (Kaupp v. Texas [(2003)] 538 U.S. [626,] 630.) Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) . . . [¶] [A]n officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citation.] . . .
"The distinction between a detention and an arrest 'may in some instances create difficult line-drawing problems.' [Citations.] This much is clear: A brief stop and patdown of someone suspected of criminal activity is merely an investigative detention requiring no more than a reasonable suspicion. (Terry v. Ohio, supra, 392 U.S. at pp. 6-7.) . . . [¶] . . . [¶] '[T]he issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.] Important to this assessment, however, are the 'duration, scope and purpose' of the stop. [Citation.]
"With respect to duration, the United States Supreme Court has said that ' "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." ' (United States v. Sharpe [(1985)] 470 U.S. [675,] 685.) [¶] With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not [automatically] convert a detention into an arrest. [Citations.] [¶] Of significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity. [Citations.] Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony." (People v. Celis (2004) 33 Cal.4th 667, 673-676.) In determining whether a seizure was a reasonable detention or an arrest, "we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention." (People v. Glaser (1995) 11 Cal.4th 354, 365; see Rodriguez v. U.S. (2015) 575 U.S. ___, [135 S.Ct. 1609, 1614] ["the tolerable duration of [a detention] is determined by the seizure's 'mission' "].)
"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. Glaser, supra, 11 Cal.4th at p. 362.)
Asserting he was arrested without probable cause, Jimenez relies in part on In re Antonio B. (2008) 166 Cal.App.4th 435 and People v. Espino (2016) 247 Cal.App.4th 746. The Antonio B. court held that handcuffing a teenager in a daytime street stop by three officers was excessive, and thus amounted to an arrest rather than a detention, where the officers merely suspected the teenager might possess drugs because his companion was openly smoking marijuana. (Antonio B., at pp. 438-439, 442.) In Espino, which relied in part on Antonio B., the court held that three officers arrested rather than detained a defendant when they handcuffed him during a traffic stop because they had already conducted a pat-down search that produced no weapons and had moved the defendant away from his car, thereby diminishing his risk of escape or access a weapon (Espino, at pp. 752-753, 758-760). We agree with the trial court that, on the significantly different facts of this case, the initial seizure of Jimenez was a detention, not an arrest; the initial detention was supported by reasonable suspicion; and the subsequent movement of Jimenez to the patrol car was either an arrest supported by probable cause or a justified continuation of the initial detention. A. Initial Detention at Gunpoint and Handcuffing
We first consider Galligan's seizure of Jimenez from the moment he pointed his gun at Jimenez and ordered him to halt to when Jimenez was handcuffed. We credit the trial court's finding that Galligan was not aware of blood on Jimenez's clothing until he approached Jimenez, and that Jimenez's appearance was such that he could be mistaken for a young White male. We also assume for purposes of argument the initial dispatch reported a robbery at 23rd Street and Valencia and Galligan did not hear the dispatch broadcast about a man found bleeding on Bartlett until after Jimenez was handcuffed (i.e., we resolve conflicts in the evidence on these issues in Jimenez's favor for purposes of argument). We affirm the trial court's ruling that this was a detention, not an arrest, and that it was supported by reasonable suspicion.
As noted ante, "we balance the extent of the intrusion against the government interests justifying it." (People v. Glaser, supra, 11 Cal.4th at p. 365.) The government interests here were strong. The officers were investigating a just-reported violent felony that might be ongoing. Jimenez roughly matched the description of a suspected perpetrator and was walking away from the reported crime location only two blocks away. The suspicion that Jimenez committed a serious crime justified a greater intrusion into his personal liberty to investigate than would a suspicion that he committed, for example, an infraction. (Cf. In re Antonio B., supra, 166 Cal.App.4th at p. 442; id. at p. 441 [distinguishing cases involving "reports of violent felonies by persons matching the descriptions of the detained suspects and/or their vehicles"].)
Concerns for officer safety also justified a greater intrusion during the investigation. The factors suggesting Jimenez might have just committed a violent felony raised a legitimate concern that he could pose a threat to officer safety, including a possibility he might be armed. (Cf. In re Antonio B., supra, 166 Cal.App.4th at p. 441 [distinguishing cases where there were "reports . . . the suspect was armed" or "the suspect was seen leaving the scene of an attempted burglary"]; People v. Espino, supra, 247 Cal.App.4th at p. 759 [distinguishing cases where defendant posed a possible threat].) That concern was heightened (albeit minimally) by Jimenez's failure to immediately halt when confronted by the police. (Cf. Antonio B., at p. 442 [distinguishing case where "the suspect refused to obey the officer's commands"].) Other circumstances also raised safety concerns. The detention occurred at night about two blocks from the site of the reported recent armed robbery: the dark conditions made it more difficult for the officers to determine if other suspects might be in the area, thus justifying the officers' decision to secure Jimenez at gunpoint and with handcuffs, which freed the officers to survey the area for other possible threats. (See People v. Steele (2016) 246 Cal.App.4th 1110, 1119 [citing darkness as circumstance warranting caution by officers and justifying detention]; People v. Mendoza (2011) 52 Cal.4th 1056, 1082 [similar].)
Critically, the initial detention of Jimenez was quite brief, possibly no more than 30 seconds before the officers approached and handcuffed him. (Cf. People v. Celis, supra, 33 Cal.4th at p. 675 [reviewing cases where seizures for 30 to 60 minutes were deemed detentions, not arrests].) The officers "diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly." (Ibid.) Considering the duration, purpose and scope of the seizure, we conclude it was a detention rather than an arrest.
We also conclude the detention was supported by reasonable suspicion. Jimenez was found about two blocks from a reported recent armed robbery at 3:00 a.m., a time when few pedestrians are on public streets. (See People v. Souza, supra, 9 Cal.4th at pp. 240-241 [reasonable suspicion supported in part by observation of people standing by car in darkness and at a late hour]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 147-148 [reasonable suspicion supported in part because vehicle was spotted at "midnight on a Tuesday night, when relatively few persons are working or otherwise away from home"].) Jimenez roughly matched the description of the suspected robbers, and he was walking roughly in a direction away from the reported robbery. (See U.S. v. Bautista (1982) 684 F.2d 1286, 1289 [detainees were spotted "on a likely escape route" from the reported robbery and "were the only people in sight who matched the description of the robbers"], cited in People v. Celis, supra, 33 Cal.4th at p. 675.) When Galligan ordered Jimenez to stop, he raised his hands but did not immediately halt, taking steps backward, indicating a possible prelude to flight. (See Souza, at pp. 240-241.) These facts collectively provided reasonable suspicion for the brief initial detention. B. Seizure of Jimenez After the Handcuffing
Once the officers approached Jimenez to handcuff him while he was on the ground, they observed blood on his shorts, as the trial court found. Concurrently or shortly thereafter, they heard a radio report that a bleeding man had been located about one block away in the direction of the reported robbery and in the area from which Jimenez was initially observed walking. These factors, in addition to the factors discussed ante, provided probable cause to arrest Jimenez. The evidence establishing probable cause became even stronger when Jimenez then volunteered that his "friend" was hurt, suggesting he was associated with the bleeding man who had been located nearby. After Jimenez consented to a search, the officers found two cellphones and a watch in his pocket, which might reasonably be assumed to be likely proceeds of a robbery rather than items carried for personal use.
Even if the facts known to Galligan before he walked Jimenez to the patrol car had not risen to the level of probable cause, securing Jimenez in a patrol car was justified as part of the initial detention under the circumstances of this case. The seriousness of the reported crime, at least partially corroborated by discovery of a bleeding man in the vicinity of the crime scene, combined with blood observed on Jimenez's clothing, resulted in a high degree of suspicion that Jimenez was involved in the robbery and justified further investigation. (See People v. Glaser, supra, 11 Cal.4th at p. 365.) Detention within a patrol car, or even transportation to a different location, does not automatically convert a detention into an arrest. (See People v. Soun (1995) 34 Cal.App.4th 1499, 1511-1513, 1517, 1519-1520 [transported three blocks to a parking lot in order to clear roadway]; In re Carlos M. (1990) 220 Cal.App.3d 372, 378, 383 [transported to hospital for possible witness identification].) The circumstances of this nighttime detention close to the scene of a recently-reported armed robbery justified measures to ensure officer safety. Securing Jimenez in a vehicle was reasonable because it freed the officers to scan the area for threats while they completed their investigation. Thereafter, Galligan received additional information (Jimenez's voluntary statement about a connection with the bleeding man) that provided additional reasonable suspicion justifying extension of the detention or, alternatively, probable cause to arrest him.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.