People v. Dolly

KENNARD, J., Concurring.

I agree with the majority’s conclusion that the police in this case acted reasonably in detaining defendant, and that the trial court therefore properly denied defendant’s motion to suppress the fruits of that detention. Because I find the majority’s reasoning underlying its conclusion unpersuasive, I write separately to set forth my views.

I

In the afternoon of April 17, 2002, an unidentified man called the California Highway Patrol, whose dispatcher transferred the call to the Los Angeles Police Department. The caller reported that a light-complected African-American man had just pulled a gun on him. He said the suspect was wearing a bandage on his left hand and was sitting in the driver’s seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevard, near the comer of Ninth Avenue, in Los Angeles. The caller did not wish to give his name because the suspect had mentioned a gang and the caller feared retaliation from the gang for “snitching.” About four minutes later, the caller made a second call to the police; he said he had just driven by the intersection where the car was located and wanted to correct his description of the car—the Nissan was black, not gray. He again refused to give his last name, but said his first name was “Drew.”

*472Within minutes after that second call, Los Angeles Police Officer Frank Dominguez, accompanied by his partner, Officer Goldstein, drove to the location in question. There they saw a man (defendant), who matched the caller’s description, seated in the driver’s seat of a black Nissan Maxima. They detained him and searched the car, finding a handgun under the front passenger seat.

Defendant was charged with possession of a firearm by a convicted felon. He moved to suppress the gun, claiming the detention and the ensuing car search violated his rights under the Fourth Amendment of the federal Constitution. The trial court denied his motion to suppress, and a jury thereafter found him guilty as charged. The Court of Appeal affirmed the conviction, rejecting defendant’s contention that the officers lacked reasonable cause to detain him.

II

The pertinent analysis to resolve the issue here is, in my view, as follows.

In the words of the United States Supreme Court: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security,’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot.” ’ [Citations.] [][] When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 122 S.Ct. 744] (Arvizu).)

Thus, this court must decide here whether, under the totality of circumstances, the anonymous calls described above gave the detaining officers a “ ‘particularized and objective basis’ for suspecting legal wrongdoing.” (Arvizu, supra, 534 U.S. at p. 273.) Defendant, relying on Florida v. J. L. (2000) 529 U.S. 266 [146 L.Ed.2d 254, 120 S.Ct. 1375] (J. L), argues that because the caller in this case never gave the police his last name, the information he gave in his telephone calls did not give rise to a reasonable suspicion that defendant was involved in criminal activity, and that he therefore should not have been detained.

*473In J. L., the police received an anonymous tip that an African-American man in a plaid shirt at a specified bus stop was carrying a concealed firearm. The police found a man matching that description at the bus stop in question. They detained him, patted him down, and found a gun. The United States Supreme Court held that the detention was illegal because the anonymous tip was insufficiently reliable to justify the detention. The court explained: “All the police had to go on . . . 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 [the defendant].” (J. L., supra, 529 U.S. at p. 271.) In rejecting the prosecution’s argument that the tip was reliable because it accurately described “the suspect’s visible attributes” (ibid.), the court stated the information did not show “that the tipster ha[d] knowledge of concealed criminal activity.” (Id. at p. 272.) An anonymous tip, the court held, does not give rise to a reasonable suspicion of criminal activity unless it is “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Ibid.)

The facts of J. L., supra, 529 U.S. 266, are distinguishable from the facts here, where the two anonymous telephone calls, tape recordings of which were admitted as an exhibit at the hearing on defendant’s motion to suppress, provided the police with a “ ‘particularized and objective basis’ for suspecting legal wrongdoing.” (Arvizu, supra, 534 U.S. at p. 273.) As the Court of Appeal explained: “Here, the urgency in the caller’s tone was evident on the recording. The caller said the man had a gun in his pocket, and ‘he just pulled it on me right now, man.’ He added that the man mentioned a gang name and he felt the man was going to shoot him ‘right there that minute.’ He said that he knew it was not right for him to ‘snitch’ as far as the streets were concerned, but he was not from the area and had no one to defend him.” The caller also said he wanted to “try to do things right by the law” and was trying to be as helpful as possible without risking retaliation from neighborhood gangs. He even drove by the intersection again and called a second time to confirm that the suspect was there and to more accurately describe the color of the car, and he gave his first name to the 911 operator.

In this case, unlike J. L, the police did not have “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.” (J. L, supra, 529 U.S. at p. 271.) Instead, the anonymous caller explained that he knew that defendant had a gun because defendant had “just pulled it on” the caller. Given the totality of circumstances surrounding the calls—the caller’s tone of voice,1 his willingness to make a second call to make sure *474that the police stopped the right car, his description of the assault committed on him, and his plausible explanation for his desire for anonymity—the police could reasonably conclude that he was a crime victim describing an assault that had been committed on him. “It may ... be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable.” (People v. Ramey (1976) 16 Cal.3d 263, 269 [127 Cal.Rptr. 629, 545 P.2d 1333].)

For these reasons, the police officers here had a reasonable suspicion that defendant was engaged in criminal activity. Thus, their investigatory detention of defendant did not violate the Fourth Amendment, and the trial court properly denied defendant’s motion to suppress evidence. The majority comes to the same conclusion, but its analysis is different, as discussed below.

III

The majority gives four reasons why, in its view, the police had a reasonable suspicion that defendant was engaged in criminal conduct. First, it explains that defendant’s alleged act of pointing a gun at the caller posed a grave danger to the public. (Maj. opn., ante, at pp. 465-467.) Second, it states that “anonymous phoned-in tips concerning contemporaneous threats with a firearm are [no] more likely to be hoaxes than are anonymous phoned-in tips concerning a contemporaneous event of reckless driving” (id. at p. 467) and the call here was particularly reliable because it was recorded (id. at p. 467). Third, according to the majority, “the tipster-victim provided a firsthand, contemporaneous description of the crime as well as an accurate *475and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived.” (Id. at p. 468.) Fourth, the majority notes that “the caller supplied a plausible explanation for wanting to remain anonymous.” (Id. at p. 469.)

The first of the majority’s reasons (that the conduct reported to the police by the anonymous caller posed a danger to the public) has no bearing on the issue, which is whether the police could reasonably suspect that defendant was engaged in criminal conduct. This is why: The degree of danger posed by a suspect has no logical relationship to the reliability of the information provided. True, the high court in J. L. strongly hinted that in certain exigent circumstances—such as an anonymous tip that a suspect is carrying a bomb—the police may detain a suspect even without reasonable suspicion. (J. L., supra, 529 U.S. at pp. 273-274.) But by relying on facts pertaining to defendant’s dangerousness as proof that the police had reasonable cause to detain him, the majority here conflates two distinct and unrelated questions: first, whether the detaining officers have reasonable suspicion of criminal activity (the issue here); second, whether exigent circumstances justify a detention without reasonable suspicion.

Assuming for the sake of argument that here the existence of such exigent circumstances is at issue, in my view there was no exigency. The anonymous caller did not report an ongoing assault; rather, he said a person had just pulled a gun on him, and that man was now sitting in a car in a particular location. When last seen by the caller, the man with the gun was not threatening anyone. Thus, the situation was analogous to that presented in J. L., supra, 529 U.S. 266, where the suspect was reported to be standing at a bus stop, carrying a concealed firearm.

The majority’s second reason for here upholding the detention—its conclusion that reports of threats with firearms are no more likely to be hoaxes than are reports of reckless driving, and that the call here was particularly reliable because it was recorded—is based primarily on this court’s recent decision in People v. Wells (2006) 38 Cal.4th 1078 [45 Cal.Rptr.3d 8, 136 P.3d 810] (Wells). In Wells, a majority of this court held that an anonymous call reporting that a blue van had been weaving justified a stop of that van, even though the officer who located a van matching the caller’s description observed no weaving or other conduct suggestive of illegality. The majority’s decision in Wells was wrong for the reasons explained in Justice Werdegar’s dissent in that case, which I joined. (See id. at pp. 1089-1095 (dis. opn. of Werdegar, J.).) Similarly flawed, therefore, is the majority’s reliance on Wells in this case.

Even if the majority’s decision in Wells, supra, 38 Cal.4th 1078, were correct, I see no basis for the majority’s assertion that here the reliability of *476an anonymous telephone call can be determined based on the type of crime reported. Some reports of threats with firearms are reliable while others are not; some reports of reckless driving are reliable while others are not. Whether a particular anonymous tip to the police gives rise to a reasonable suspicion of criminal conduct is a fact-intensive question that must be decided based on the precise information provided. I see nothing in the decisions of the United States Supreme Court to support the majority’s categorical approach here, which seems to treat all anonymous tips of reckless driving and firearm use as reliable because of the nature of those crimes.

Nor am I persuaded by the majority’s heavy reliance on the circumstance that the anonymous call was recorded. In my view, the crucial question is not whether the call was recorded, but what the caller said; that is, whether “the dispatcher or arresting officer had any objective reason to believe that this tip had some particular indicia of reliability.” (J. L, supra, 529 U.S. at pp. 275-276 (conc. opn. of Kennedy, J.).)

The majority’s third and fourth reasons for upholding the detention—that the anonymous caller gave a firsthand description of the crime and a plausible reason for remaining anonymous—are generally similar to the reasons I have given for reaching the same conclusion, and I therefore have no quarrel with them. The majority, however, relegates these reasons to the end of its discussion, and it appears to regard them as less significant.

IV

For the reasons given above, I agree with the majority that the judgment of the Court of Appeal should be affirmed.

In her concurring opinion, Justice Werdegar concludes that an appellate court should not consider an anonymous caller’s tone of voice in determining the legality of a detention based on that call unless the “dispatcher or the police officer effecting the detention actually relied on *474the caller’s vocal tone in assessing his reliability.” (Cone. opn. of Werdegar, J., post, at p. 479, fn. 3, italics added.) In my view, an appellate court may consider the tone of the caller’s voice so long as it is objectively reasonable for the dispatcher to have done so. (J. L., supra, 529 U.S. at pp. 275-276 (cone. opn. of Kennedy, J.); see also Scott v. United States (1978) 436 U.S. 128, 138 [56 L.Ed.2d 168, 98 S.Ct. 1717]; People v. Conway (1994) 25 Cal.App.4th 385, 388 [30 Cal.Rptr.2d 533].)

Justice Werdegar’s concurring opinion also asserts that to permit consideration of an anonymous caller’s tone of voice “as a factor demonstrating reliability of an anonymous tip would potentially swallow the rule, for one can imagine that virtually all callers to police emergency numbers betray some agitation and emotion in their voices.” (Cone. opn. of Werdegar, J., post, at p. 479, fn. 3.) But this would be true only if an anonymous caller’s tone of voice could, by itself, establish the caller’s reliability. In my view, a caller’s tone of voice does not itself demonstrate the call’s reliability, but it is nevertheless a factor that appellate courts may consider in determining whether the call is sufficiently reliable to justify a detention.

Justice Werdegar’s concurrence also notes that here the parties did not discuss the anonymous caller’s tone of voice at the hearing on the motion to suppress evidence. True, but irrelevant. Because a tape recording of the telephone calls was admitted into evidence as an exhibit, it is part of the appellate record, and the caller’s tone of voice is relevant evidence that this court may consider.