IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S134505
v.
Ct.App. 2/2 B169971
NORMAN J. DOLLY,
Los Angeles County
Defendant and Appellant.
Super. Ct. Nos. YA052124 &
YA046623
In People v. Wells (2006) 38 Cal.4th 1078 (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.) 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.
1
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
2
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 postarrest 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, and People v. Bowers (2004) 117 Cal.App.4th 1261,
1270-1271. 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.
3
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.) 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.) In this case, defendant
does not dispute that the officers were entitled to search the passenger
compartment 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; see also People v. Souza (1994) 9 Cal.4th
224, 227, 230.) “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.)
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,
4
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.)
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), and distinguished the United States Supreme Court’s decision in Florida v.
J. L. (2000) 529 U.S. 266 (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.) 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; see Wells, supra, 38 Cal.4th at p. 1084.)
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), we determined in Wells that the
relative urgency presented by drunk or erratic drivers could justify an
5
investigatory detention based on an anonymous tip despite the absence of
corroborating evidence of illegal activity. A tip’s reliability, we observed, need
not depend exclusively on its ability to predict the suspect’s future behavior (see,
e.g., Alabama v. White (1990) 496 U.S. 325, 332 (White)) or the officer’s ability to
corroborate present illegal activity (see, e.g., People v. Butler (2003) 111
Cal.App.4th 150, 162). Rather, the tip’s reliability depends upon an assessment of
“the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p.
1088; accord, U.S. v. Perkins (4th Cir. 2003) 363 F.3d 317, 325 [“A rigid rule
demanding the presence of predictive information is thus unjustified by White and
J. L., and it would be wholly inconsistent with the flexible nature of reasonable
suspicion analysis”].)
Accordingly, Wells relied on the totality of the circumstances in
distinguishing J. L. We explained first that a report of a possibly intoxicated
driver weaving all over the roadway posed “a far more grave and immediate risk
to the public than a report of mere passive gun possession.” (Wells, supra, 38
Cal.4th at p. 1087.) “ ‘[A]n anonymous report of an erratic or drunk driver on the
highway presents a qualitatively different level of danger, and concomitantly
greater urgency for prompt action. In the case of a concealed gun, the possession
itself might be legal, and the police could, in any event, surreptitiously observe the
individual for a reasonable period of time without running the risk of death or
injury with every passing moment. An officer in pursuit of a reportedly drunk
driver on a freeway does not enjoy such a luxury.’ ” (Id. at p. 1086, quoting State
v. Boyea (Vt. 2000) 765 A.2d 862, 867.)
We said next that “doubts regarding the tipster’s reliability and sincerity are
significantly reduced in the setting of a phoned-in report regarding a
contemporaneous event of reckless driving presumably viewed by the caller.
Instances of harassment presumably would be quite rare.” (Wells, supra, 38
6
Cal.4th at p. 1087.) Indeed, “the relatively precise and accurate description given
by the tipster in the present case regarding the vehicle type, color, location, and
direction of travel, all confirmed by the investigating officer within minutes of
receiving the report, enhanced the reliability of the tip.” (Id. at p. 1088.) Based on
that level of detail and the officer’s ability to corroborate it, we inferred that the
observation of reckless driving must have come from a passing motorist. (Ibid.)
In light of the tip’s detailed and contemporaneous description, the officer’s ability
promptly to corroborate its innocent details, and the danger posed by a motorist
under the influence, we were “convinced” in Wells “that the officer’s traffic stop
was justified by reasonable suspicion of criminal activity.” (Ibid.)
Consideration of these (and other factors) convinces us that the detention
should be upheld in this case.
First, defendant’s conduct in pointing a revolver at the caller in an apparent
threat to shoot him posed a grave and immediate risk not only to the caller but also
to anyone nearby. (U.S. v. Holloway (11th Cir. 2002) 290 F.3d 1331, 1339
(Holloway) [anonymous 911 call reporting gunshots and arguing “involved a
serious threat to human life”].) “[A]llegations of the threatening use of a weapon,
made by person claiming to be an eyewitness to the threats, required immediate
police action” and “is materially distinguishable from the anonymous tip at issue
in Florida v. J. L.,” which involved only an allegation of a concealed weapon.
(Ray v. Village of Woodridge (N.D.Ill. 2002) 221 F.Supp.2d 906, 914; see also
U.S. v. Nelson (3d Cir. 2002) 284 F.3d 472, 483 [“the critical element alleged in
the tip was not the mere presence of a gun, but the fact that violent crimes were in
the process of being committed”].) An allegation concerning the possession of a
concealed weapon “without more” (J. L., supra, 529 U.S. at p. 268) does not
present an emergency situation involving an immediate danger to human life.
(Holloway, supra, 290 F.3d at pp. 1338-1339; accord, People v. Jordan (2004)
7
121 Cal.App.4th 544, 562-564 [anonymous tip that suspect possessed a concealed
weapon insufficient to justify detention]; People v. Saldana (2002) 101
Cal.App.4th 170, 175 [same].)
Defendant’s suggestion that the emergency had ended in this case because
the 911 call was “a report of an assault that had been completed, not one that is
occurring” is not persuasive.1 In U.S. v. Terry-Crespo (9th Cir. 2004) 356 F.3d
1170 (Terry-Crespo), for example, the Ninth Circuit found that a 911 caller’s
report describing a threat with a .45-caliber handgun a few minutes earlier
constituted “a contemporaneous emergency event,” even though the tipster was a
mile and half away by the time the police arrived at the scene. (Id. at p. 1176.) In
this case, the caller was still in the area, inasmuch as he had just driven by
defendant’s vehicle to verify its color, and cannot be said to have reached a place
of safety as long as defendant remained at large and had use of his vehicle. In this
context, defendant remained “extremely mobile and potentially highly dangerous”
to the tipster-victim and potentially to others in the area (U.S. v. Wheat (8th Cir.
1
Defendant also challenges the trial court’s implied finding that Officer
Dominguez was aware the 911 caller had been threatened with the gun, pointing
out that the tape of the radio dispatch did not include the word “threat.” The
challenge lacks merit. As defendant concedes, the radio broadcast included a
number of police codes, any of which may have communicated the fact of the
threat. Moreover, defendant has not shown that the taped broadcast constituted the
totality of the communications received by the patrol officers. Consequently, he
has not refuted Officer Dominguez’s direct testimony that he was aware, prior to
the stop, the caller had been threatened with the gun. Finally, because defendant
never argued below that the officers lacked knowledge of the contents of the 911
call, thereby denying the People the opportunity to offer contrary evidence, he has
forfeited any challenge to the use of the caller’s statements. (Evid. Code, § 353;
Anthony v. City of New York (2d Cir. 2003) 339 F.3d 129, 136, fn. 3.) Indeed, it
was defendant who offered the tape of the 911 call at the suppression hearing,
without requesting any limitation on its use, and relied on its contents.
8
2001) 278 F.3d 722, 737)—regardless of whether the tipster-victim subjectively
apprehended the danger.
Indeed, defendant concedes that “an imminent threat to kill constitute[s] an
emergency situation” justifying a stop even when the intended victim is elsewhere,
yet fails to distinguish the circumstances here. In our view, the interest in
protecting human life, even if insufficient in this case to dispense entirely with the
need to demonstrate the anonymous tip’s reliability (see J. L., supra, 529 U.S. at p.
273), is nonetheless an important factor to consider in assessing the requisite level
of reliability. (Wells, supra, 38 Cal.4th at pp. 1084, 1087.)
Second, there is no reason to think that anonymous phoned-in tips
concerning contemporaneous threats with a firearm are any more likely to be
hoaxes than are anonymous phoned-in tips concerning a contemporaneous event
of reckless driving. (Compare Terry-Crespo, supra, 356 F.3d at p. 1177 with
Wells, supra, 38 Cal.4th at p. 1087.) Indeed, the call here bore stronger indicia of
reliability than did the call in Wells. Unlike Wells, where the record was “silent”
as to the circumstances leading to the call or the call itself (id. at p. 1081), this case
involves a 911 call that was taped. “911 calls are the predominant means of
communicating emergency situations” and “are distinctive in that they concern
contemporaneous emergency events, not general criminal behavior. . . . If law
enforcement could not rely on information conveyed by anonymous 911 callers,
their ability to respond effectively to emergency situations would be significantly
curtailed.” (Holloway, supra, 290 F.3d at p. 1339; see Terry-Crespo, supra, 356
F.3d at p. 1176 [911 calls are “entitled to greater reliability than a tip concerning
general criminality because the police must take 911 emergency calls seriously
and respond with dispatch”]; State v. Golotta (N.J. 2003) 837 A.2d 359, 366 [an
anonymous tip placed and processed via the 911 system “carries enhanced
reliability not found in other contexts”].)
9
Furthermore, “[m]erely calling 911 and having a recorded telephone
conversation risks the possibility that the police could trace the call or identify [the
caller] by his voice.” (Terry-Crespo, supra, 356 F.3d at p. 1176.) Although
defendant is certainly correct that it may be difficult for the authorities to locate a
911 caller solely by voice, the victim of a hoax is likely to recognize the harassing
caller’s voice, thus creating a reasonable possibility of prosecution for a false
report. (See Pen. Code, § 148.5, subd. (c).) Therefore, we see no inherent reason
to discount anonymous 911 calls reporting contemporaneous violent conduct
observed firsthand merely because of the theoretical possibility the caller may be
motivated to make a false report because of a vendetta. (See U.S. v. Wheat, supra,
278 F.3d at p. 735 [“the risk of false tips is slight compared to the risk of not
allowing the police immediately to conduct an investigatory stop”]; see generally
Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372 [“We note the
absence of any indication that such malicious communications present a
widespread problem”].)2
“There is the equal danger, moreover, that according no weight to
‘anonymous’ tips in the reasonable suspicion calculus will undermine the ability
of concerned residents to report illegal activity and to thereby make their
neighborhoods more safe. Residents of neighborhoods are in the best position to
2
The fact that the call here was taped provides two additional safeguards
against arbitrary police action. As defendant concedes, the existence of the tape
eliminates “the specter of after-the-fact, police fabrication of an ‘anonymous
informant.’ ” (Terry-Crespo, supra, 356 F.3d at p. 1175; accord, Com. v. Lyons
(Mass. 1990) 564 N.E.2d 390, 392.) The tape also offers a reviewing court the
opportunity to discover whether anything about the caller’s tone, demeanor, or
actual words suggested that the report was fabricated. (State v. Williams (Wis.
2001) 623 N.W.2d 106, 115.) We have listened to the 911 call and have found
nothing in it that casts doubt on the tipster-victim’s veracity.
10
monitor activity on the streets. But residents, also fearful of the consequences,
may not always wish to identify themselves and volunteer their names. According
no weight as a matter of law to such ‘anonymous’ tips would only discourage
concerned residents from even calling the police, would burden the rights of
ordinary citizens to live in their neighborhoods without fear and intimidation, and
would render citizens helpless in their efforts to restore safety and sanctity to their
homes and communities.” (U.S. v. Perkins, supra, 363 F.3d at p. 326.)3
Third, the tipster-victim provided a firsthand, contemporaneous description
of the crime as well as an accurate and complete description of the perpetrator and
his location, the details of which were confirmed within minutes by the police
when they arrived. (U.S. v. Perkins, supra, 363 F.3d at p. 322 [“The tipster’s basis
of knowledge—a contemporaneous viewing of the suspicious activity—enhanced
the tip’s reliability”]; People v. Polander (Colo. 2001) 41 P.3d 698, 702.) It has
long been clear that “a primary determinant of a tipster’s reliability is the basis of
his knowledge.” (U.S. v. Wheat, supra, 278 F.3d at p. 734; see Illinois v. Gates
(1983) 462 U.S. 213, 234 [“even if we entertain some doubt as to an informant’s
motives, his explicit and detailed description of alleged wrongdoing, along with a
statement that the event was observed firsthand, entitles his tip to greater weight
than might otherwise be the case”].) This case is thus unlike J. L., in which the
informant “neither explained how he knew about the [concealed] gun nor supplied
3
The unreasonable consequences of defendant’s position—i.e., that an
anonymous tip uncorroborated by the officer’s observation of illegal activity or
predicted behavior can never justify a detention—were demonstrated at oral
argument. Defense counsel contended that the police would be unable to effect a
stop of a vehicle in response to a tip that the driver had just abducted a young child
from a nearby playground if the caller refused to disclose his or her identity.
Under defendant’s approach, the police could do no more than follow the vehicle
and watch helplessly as the driver entered the garage and closed the door.
11
any basis for believing he had inside information” (J. L., supra, 529 U.S. at p. 271)
and in which the record did not reveal when the caller discovered the suspect had a
concealed weapon or how soon the police responded to the call (id. at p. 268).
The police “may ascribe greater reliability to a tip, even an anonymous one, where
an informant ‘was reporting what he had observed moments ago,’ not stale or
second-hand information.” (Terry-Crespo, supra, 356 F.3d at p. 1177.) The
record here is stronger even than that in Wells, in which we inferred that the tip of
reckless driving must have come from a passing motorist. (Wells, supra, 38
Cal.4th at p. 1088; see also id. at p. 1092 (dis. opn. of Werdegar, J.).) The tip’s
reliability was further enhanced by the tipster-victim’s second call to 911, in
which he said that he had just driven by the scene and reported that the Nissan
Maxima in which defendant was sitting was black, not gray. (State v. Williams,
supra, 623 N.W.2d at p. 114.) Defendant does not deny that the tip here “was
sufficiently copious and precise.” (U.S. v. Wheat, supra, 278 F.3d at p. 732.)
Fourth, the caller supplied a plausible explanation for wanting to remain
anonymous. He noted that defendant had uttered a gang name, worried that “I
don’t have anyone to defend me from all this gang shit,” and explained that “if
they find out I’m snitching, they’re going to kill me around here.” That the tipster
“may be understandably reticent to give identifying information for fear of
retaliation or danger” reduces the significance of his anonymity in analyzing the
reliability of his report. (Holloway, supra, 290 F.3d at p. 1339.) Defendant’s
contention that nothing in the record showed that the tipster-victim had a basis for
fearing retaliation “due to ongoing contact with [defendant],” even if true, does not
affect the analysis.
Defendant relies on a handful of out-of-state decisions in urging us to deem
this detention unlawful, but the cases are easily distinguished. In People v. Folk
(N.Y.App.Div. 2001) 727 N.Y.S.2d 131 and People v. Ballard (N.Y.App.Div.
12
2001) 719 N.Y.S.2d 267, for example, the anonymous tipster reported only that
the defendant had a concealed weapon. Both cases quoted J. L. in pointing out
that the informant “ ‘neither explained how he knew about the gun nor supplied
any basis for believing he had inside information about [the defendant]’ ” and that
the report did not show “ ‘that the tipster ha[d] knowledge of concealed criminal
activity.’ ” (Folk, supra, 727 N.Y.S.2d at p. 132; Ballard, supra, 719 N.Y.S.2d at
p. 268; see also U.S. v. Blackshaw (N.D. Ohio 2005) 367 F.Supp.2d 1165, 1172
[“At most, the anonymous call provided a clothing description, a vehicle
description, an approximate location, and report of a handgun”]; U.S. v. Person
(E.D.N.Y. 2001) 134 F.Supp.2d 517, 527 [“imminent danger would warrant a stop
based on an unverified anonymous tip,” but “[t]he tip here involved little more
than a general description and the allegation of gun possession”]; People v.
Carlson (Ill.App.Ct. 2000) 729 N.E.2d 858, 859 [the tip provided the defendant’s
location and stated merely that he “might have a gun”]; State v. Hopkins
(Wn.Ct.App. 2005) 117 P.3d 377, 381 [the tip “contained inaccurate information
about Hopkins’ height, weight, and age” and reported only “that a minor was
‘scratching his leg’ with ‘what appeared to be a gun,’ and that he ‘thinks’ the gun
is in Hopkins’ right pocket”].) Unlike J. L., the tip here involved the visible and
threatening use of the weapon and supplied the basis for the tipster’s knowledge.
(Ray v. Village of Woodridge, supra, 221 F.Supp.2d at p. 914; see Scott v. Com.
(Va.Ct.App. 1995) 460 S.E.2d 610, 612-613.)4
4
Defendant relies also on People v. Jordan, supra, 121 Cal.App.4th 544,
which he characterizes as “unusually, even eerily, similar” to this case. He is very
much mistaken. In Jordan, unlike here, the responding officers knew only that the
defendant “ ‘[p]ossibly’ ” had a concealed handgun. (Id. at pp. 550; see id. at pp.
559-560 & fn. 8.) In Jordan, unlike here, the record did not indicate how much
time elapsed between the end of the telephone call and the radio transmission of
the information to the officers. (Id. at p. 558, fn. 7; see also J. L., supra, 529 U.S.
(footnote continued on next page)
13
We likewise decline to follow People v. Braun (N.Y.App.Div. 2002) 750
N.Y.S.2d 58, which involved an anonymous tip of a recent burglary, or People v.
Moore (N.Y. 2006) 814 N.Y.S.2d 567, which involved an anonymous tip of a
dispute involving a gun, because both courts interpreted J. L. as barring reliance
on an anonymous tip unless the tip “contains predictive information—such as
information suggestive of criminal behavior—so that the police can test the
reliability of the tip” (Moore, supra, 814 N.Y.S.2d at p. 569) or is corroborated by
the officer’s direct observation “of conduct or other circumstances suggestive of
criminal activity” (Braun, supra, 750 N.Y.S.2d at p. 59). (See also U.S. v. Person,
supra, 134 F.Supp.2d at p. 525 [“reasonable suspicion can be based on either a
corroborated anonymous tip which verifies predicted future events, as in White, or
on a tip involving a present situation, which the police independently
corroborate”].) These cases are contrary to Wells, which eschewed such rigid
categories in favor of an approach that assesses reliability under the totality of the
circumstances. (Wells, supra, 38 Cal.4th at p. 1083; J. L., supra, 529 U.S. at p.
(footnote continued from previous page)
at p. 268 [noting a similar deficiency in the record].) In Jordan, unlike here, the
tipster did not disclose how he knew the defendant had a concealed weapon, nor
did he say “whether he personally saw the gun, inferred its presence from other
facts he observed, inferred its presence from [Jordan]’s reputation, or received the
information from another individual” or even “when he acquired the information.”
(Jordan, supra, at pp. 559, 560.) In Jordan, unlike here, there was no explanation
offered as to why the caller wanted to remain anonymous. And in Jordan, unlike
here, the level of danger was “comparable to the level of danger shown by the
facts described in Florida v. J. L.” (Jordan, supra, at p. 563.) Based on these
circumstances, the Court of Appeal found only one factor on which to distinguish
J. L.—i.e., the fact the anonymous tip was recorded and transcribed—but
otherwise found “no principled way to distinguish this case” and concluded “that
the opinion in Florida v. J. L. dictates the result.” (Jordan, supra, at p. 562.)
14
274 (conc. opn. of Kennedy, J.) [“there are many indicia of reliability respecting
anonymous tips”]; see generally People v. Souza, supra, 9 Cal.4th at p. 230 [case
law has “stressed the importance of taking into account ‘the totality of the
circumstances’ in determining the propriety of an investigatory stop”].) Tellingly,
neither Moore nor Braun even contains the phrase “totality of the circumstances.”
“[T]here are situations in which an anonymous tip, suitably corroborated,
exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make
the investigatory stop.’ ” (J. L., supra, 529 U.S. at p. 270.) As the high court has
explained, however, the tip must be “reliable in its assertion of illegality, not just
in its tendency to identify a determinate person.” (Id. at p. 272.) In this case, the
911 call was a firsthand report of violent criminal conduct requiring an immediate
response to protect public safety. The call was recorded, eliminating the
possibility of after-the-fact police fabrication and allowing after-the-fact review
(albeit limited) of the caller’s sincerity. The report was fresh, detailed, and
accurate, and its description of defendant and his location was corroborated by the
police within minutes. Under the totality of the circumstances, we find there was
sufficient indicia that the 911 caller was able to see the criminal conduct he was
reporting, that he was reporting it truthfully and accurately, and thus that the tip
was sufficiently reliable to justify the limited intervention of an investigatory
detention, which led to discovery of the loaded revolver. The superior court did
not err in denying the motion to suppress.
15
DISPOSITION
The judgment of the Court of Appeal is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
CORRIGAN, J.
16
CONCURRING OPINION BY KENNARD, J.
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 corner 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.”
Within minutes after that second call, Los Angeles police officer Frank
Dominguez, accompanied by his partner, Officer Goldstein, drove to the location
1
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
(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,
2
supra, 534 U.S. at p. 273.) Defendant, relying on Florida v. J.L. (2000) 529 U.S.
266 (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.
In 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.
3
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
1
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 the caller’s vocal tone in assessing his
reliability.” (Conc. opn. of Werdegar, J., post, at p. 5, 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 (conc. opn. of Kennedy, J.); see also Scott v. United States (1978) 436
U.S. 128, 138; People v. Conway (1994) 25 Cal.App.4th 385, 388.)
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.” (Conc. opn. of Werdegar, J., post, at p. 5,
fn. 3.) But this would be true only if an anonymous caller’s tone of voice could,
(footnote continued on next page)
4
willingness to make a second call to make sure that 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.)
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. 7-9.) Second, it states that
(footnote continued from previous page)
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.
5
“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. 9) and the call here was
particularly reliable because it was recorded (id. at pp. 9-10). Third, according to
the majority, “the tipster-victim provided a firsthand, contemporaneous description
of the crime as well as an accurate and 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. 11.) Fourth, the majority notes that “the caller
supplied a plausible explanation for wanting to remain anonymous.” (Id. at p. 12.)
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,
6
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 (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 an
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
7
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.
KENNARD,
J.
8
CONCURRING OPINION BY WERDEGAR, J.
I concur in the judgment. I write separately to explain why I do not join in
the entirety of the majority’s reasoning.
For the second time in less than a year, this court has been asked to evaluate
the constitutional validity of a law enforcement response to an anonymous
phoned-in report of potential criminality (see People v. Wells (2006) 38 Cal.4th
1078 (Wells)) and to apply the rule about such reports laid down by the United
States Supreme Court in Florida v. J. L. (2000) 529 U.S. 266 (J. L.). In J. L.,
police received an anonymous tip that a young African-American male wearing a
plaid shirt was standing at a particular bus stop and was carrying a concealed
weapon. Police located a person at the bus stop who matched the tipster’s
description but failed to observe any criminal behavior. They nevertheless
detained and searched the man, discovering a concealed weapon. The high court
unanimously invalidated the search, reasoning that confirmation of the innocent
details of an anonymous tip was insufficient to supply reasonable cause to detain.
“An accurate description of a subject’s readily observable location and appearance
is of course reliable in this limited sense: It will help the police correctly identify
the person whom the tipster means to accuse. Such a tip, however, does not show
that the tipster has knowledge of concealed criminal activity. The reasonable
suspicion here at issue requires that a tip be reliable in its assertion of illegality,
1
not just in its tendency to identify a determinate person.” (Id. at p. 272, italics
added.)
Wells posed a similar situation, but a majority of this court came to a
different conclusion. In Wells, an anonymous caller reported the existence of a
blue van traveling in a certain direction on the highway “ ‘weaving all over the
roadway.’ ” (Wells, supra, 38 Cal.4th at p. 1081.) Police located a van matching
the description but did not confirm any criminality, i.e., the van was not weaving
or speeding, and the van’s driver was apparently obeying all relevant traffic laws.
Based solely on the information provided in the anonymous tip, however, police
stopped the vehicle and arrested the driver on finding she appeared intoxicated. A
majority of this court upheld that search and seizure, citing a plethora of purported
justifications: the Wells majority distinguished J. L. because the possibility of a
drunk driver weaving on the highway posed “a far more grave and immediate risk
to the public than a report of mere passive gun possession [as in J. L.]” (Wells, at
p. 1087); the state has a strong interest in preventing drunk driving (ibid.); the
tipster had personal knowledge of the crime because he or she “presumably”
viewed the van weaving (ibid.); the level of personal intrusion accompanying a
traffic stop is “considerably less” than the pat search in J. L. (ibid.); in light of the
“ ‘pervasive regulation’ ” of vehicles on public roadways, people have a reduced
expectation of privacy when in their cars (ibid.); and the tip’s description of the
van was sufficiently detailed to permit an inference it was reliable (id. at p. 1088).
I dissented in Wells because the majority’s multiple stated rationales, alone
or in combination, were unpersuasive in light of J. L., supra, 529 U.S. 266. The
instant case, by contrast, presents a closer question than in Wells, for the
anonymous caller in this case reported defendant had threatened him personally
2
with a gun, thereby establishing (to the extent such can be established by an
anonymous tip) that the caller had personal knowledge of the crime. This
circumstance is critically important. The J. L. court emphasized that an
anonymous tip, though corroborated as to its innocent aspects, was insufficient to
supply reasonable cause to detain, in part because the “unaccountable informant
. . . neither explained how he knew about the gun nor supplied any basis for
believing he had inside information about [the defendant].” (J. L., at p. 271, italics
added; see also id. at p. 270 [“ ‘an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity,’ ” quoting Alabama v. White (1990)
496 U.S. 325, 329].) The majority in Wells argued the tipster in that case must
personally have seen the blue van weaving all over the roadway, but, as I
explained in my dissent, the argument failed because the conclusion was without
factual support; the majority merely presumed the tipster was an eyewitness to the
illegal activity. (Wells, supra, 38 Cal.4th at p. 1092 (dis. opn. of Werdegar, J.).)
“That the tip [in Wells] was from another driver or any other eyewitness is no
more than conjecture; nothing is known of the identity of the tipster or the basis of
the tipster’s knowledge.” (Ibid., italics added.)
By contrast, the tipster in this case was not completely anonymous; he
revealed his name was “Drew.” More importantly, he was an eyewitness to the
illegal activity. He reported to police that someone matching defendant’s
description had “just pulled a gun” on him and threatened to shoot him. A few
minutes after his initial call, “Drew” called back to report that he had driven by the
crime scene again and his initial description of the car was incorrect, further
indicating he was actually at the scene and had personal knowledge of the crime.
3
These facts distinguish the instant case from Wells, supra, 38 Cal.4th 1078,
where the record was devoid of evidence the tipster had personal knowledge of
any crime. J. L., supra, 529 U.S. 266, is distinguishable on this ground as well,
for the caller in that case provided no information suggesting he or she had
personal knowledge of any criminality. On balance, then, I agree with the
majority here that Officer Dominguez, responding to “Drew’s” report that
someone matching defendant’s description had just threatened him with a firearm,
did not violate defendant’s rights under the Fourth Amendment to the United
States Constitution when the officer detained and searched him.
I write separately because I cannot subscribe to the remainder of the
majority’s analysis. The J. L. court explained that anonymous tips were different
from those made by callers known to police, both because the reputation of known
callers can be assessed and known callers can be held responsible if their
allegations turn out to be fabricated. (J. L., supra, 529 U.S. at p. 270.) The J. L.
court held that when deciding whether an anonymous tip supplies reasonable
cause to detain and search, the critical question is whether the tip bore “ ‘sufficient
indicia of reliability.’ ” (Ibid.) The majority here reasons “Drew’s” tip supplied
sufficient indicia of reliability because he called the 911 emergency number and
the call was recorded. (Maj. opn., ante, at pp. 9-10.) The majority fails, however,
to explain how either circumstance enhances the caller’s reliability, that is, how an
anonymous caller’s use of the familiar 911 line or the recording of the call will
assist courts in evaluating the caller’s reputation or veracity, or will permit police
to hold the caller responsible for a false or fabricated tip.1
1
The majority relies on U.S. v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170,
1176, but that case did not involve an anonymous call.
4
Contrary to the majority’s implication, someone who wishes to make a
false accusation, perpetrate a hoax, or is merely mistaken, can do so just as easily
by calling 911 as by calling police on a nonemergency line.2 Similarly flawed is
the majority’s reliance on the fact the telephone call was recorded. The majority
reasons an anonymous call that is recorded is more reliable because the caller risks
being identified by his or her voice or having the call traced to its originating
location. (Maj. opn., ante, at p. 10.) Left unexplained is how the mere recording
of a telephone call facilitates tracing it to its source. Nor is there any evidence
callers are aware their call will be recorded or that officers in the field review such
recordings to see if they recognize the tipster’s voice before responding to the call.
That this court, as the majority assures us, has listened to the call and found
“nothing in it that casts doubt on the tipster-victim’s veracity” (maj. opn., ante, at
p. 10, fn. 2) seems patently irrelevant to the issue at hand, i.e., whether when made
the call provided police with justification for intruding on defendant’s Fourth
Amendment rights.3 In short, an anonymous call, without more, provides little or
no information about the reliability or trustworthiness of the caller, irrespective of
whether the call was to 911 and was recorded.
2
Moreover, the majority’s analysis distinguishing 911 calls from other calls
to police potentially reduces the holding of J. L. almost to the vanishing point, for
most calls to police are 911 calls.
3
Unlike Justice Kennard, in her concurring opinion, I put no weight on the
“tone” of the caller’s voice or the “urgency” he conveyed. (Conc. opn. of
Kennard, J., ante, at pp. 3, 4.) First, the relative degree of urgency one might
glean from the caller’s vocal inflection was not litigated below, rendering reliance
on that factor suspect; second, nothing in the record suggests the dispatcher or the
police officer effecting the detention actually relied on the caller’s vocal tone in
assessing his reliability; and third, to recognize an agitated or urgent vocal tone as
a factor demonstrating reliability of an anonymous tip would potentially swallow
(footnote continued on next page)
5
That police must take 911 calls “ ‘seriously and respond with dispatch’ ”
(maj. opn., ante, at p. 9, quoting U.S. v. Terry-Crespo, supra, 356 F.3d at p. 1176)
and should not “discount anonymous 911 calls reporting contemporaneous violent
conduct” (maj. opn., ante, at p. 10) responds to an argument no one is making.
Nothing in J. L. (or, for that matter, my dissenting opinion in Wells, supra, 38
Cal.4th 1078, 1089) suggests police are powerless to respond to an anonymous
911 call or that police should ignore or discount such calls. Indeed, once police
are on the scene, they may be able to corroborate some criminal aspect of an
anonymous tip. J. L. merely teaches that an anonymous tip must bear some
indicia of reliability, such as being corroborated as to its criminal aspects and not
just its innocent details, before such a tip is sufficient to warrant the invasion of a
person’s Fourth Amendment rights.
Finally, the majority’s conclusion that the anonymous tip here was
sufficiently reliable because the tipster provided “an accurate and complete
description of the perpetrator and his location, the details of which were confirmed
within minutes by the police when they arrived” (maj. opn., ante, at p. 11), fails to
apprehend that it was exactly this type of confirmation of the innocent details of an
anonymous tip that the high court in J. L held to be insufficient. “The reasonable
suspicion here at issue requires that a tip be reliable in its assertion of illegality,
not just in its tendency to identify a determinate person.” (J. L., supra, 529 U.S. at
p. 272, and quoted with approval by the maj. opn., ante, at p. 15.)
(footnote continued from previous page)
the rule, for one can imagine that virtually all callers to police emergency numbers
betray some agitation and emotion in their voices.
6
The majority suggests this case falls outside J. L.’s insistence that police
determine whether an anonymous call bears sufficient indicia of reliability because
the crime reported involved a “grave and immediate risk not only to the caller but
also to anyone nearby.” (Maj. opn., ante, at p. 7.) To be sure, the J. L. court left
open the possibility that an anonymous tip warning of some catastrophic harm,
such as a person carrying a bomb, could “justify a search even without a showing
of [the tip’s] reliability.” (J. L., supra, 529 U.S. at pp. 273-274.) But the
anonymous tip here, reporting defendant had threatened the caller with a firearm
(but apparently was no longer doing so) did not pose a danger of similar
magnitude to the offense the high court speculated about in J. L. As I explained in
my dissenting opinion in Wells, supra, 38 Cal.4th at page 1091: “That the high
court in J. L. left open the possibility that a catastrophic threat might justify a
somewhat relaxed standard of reasonable cause to detain does not suggest we are
now to rank all crimes along a sliding scale, permitting investigatory detentions on
lesser showings when the detainees are suspected of more serious crimes.
Certainly merely by mentioning the possibility of a threat ‘so great’ that some
lesser degree of suspicion could justify a detention, the high court did not suggest
such a regime.” The majority’s hypothetical of a freshly kidnapped child (maj.
opn., ante, at p. 11, fn. 3) may be distinguished as just such a catastrophic threat.
That some exceptions exist at the extreme outer edges of the law does not justify a
wholesale jettisoning of the general rule that anonymous tips must be corroborated
in some aspect of their criminality and not just as to their innocent details.
7
Also troubling is what the majority fails to include in its analysis, factors on
which the Wells majority placed considerable importance. First, in concluding
police in Wells had reasonable cause to stop the defendant’s vehicle based solely
on an anonymous tip, the Wells majority explained that “the level of intrusion of
personal privacy and inconvenience involved in a brief vehicle stop is
considerably less than the ‘embarrassing police search’ on a public street
condemned by J. L., supra, 529 U.S. at page 272.” (Wells, supra, 38 Cal.4th at
p. 1087.) I disagreed with that reasoning (id. at p. 1093 (dis. opn. of Werdegar,
J.)), and the majority appears to have abandoned it for this case. Had the majority
chosen to apply that reasoning here, it would be forced to conclude it weighed
against the search and seizure, for defendant was extracted from his vehicle at
gunpoint and made to lie facedown on the pavement with his hands at his sides,
hardly a trivial inconvenience or innocuous invasion of his personal privacy.
Second, the Wells majority justified the detention there by explaining that
“ ‘in light of the pervasive regulation of vehicles capable of traveling on the public
highways, individuals generally have a reduced expectation of privacy while
driving a vehicle on public thoroughfares.’ ” (Wells, supra, 38 Cal.4th at p. 1087,
quoting In re Arturo D. (2002) 27 Cal.4th 60, 68.) I disagreed with that reasoning
as well (id. at pp. 1092-1093 (dis. opn. of Werdegar, J.)) because the Fourth
Amendment’s auto exception, based as it is on the mobility of cars and the state’s
pervasive regulation of them, merely permits a more extensive search once a
vehicle is lawfully stopped and the driver detained. With some exceptions not
applicable here, the auto exception does not permit a detention and search on a
lesser quantum of cause. Although defendant here was in his car parked on a
public street when police encountered him, the majority, without explanation, has
chosen not to invoke the auto exception to justify his detention and search.
8
By abandoning these twin rationales, central to the majority’s reasoning in
Wells but apparently of no use today, the majority sows substantial doctrinal doubt
where additional clarity would be more appropriate. After today’s decision, for
example, one might wonder: Is the “level of intrusion of personal privacy and
inconvenience” (Wells, supra, 38 Cal.4th at p. 1087) accompanying a particular
detention a factor courts should consider when evaluating whether an anonymous
tip justified the detention or not? Do anonymous tips require less corroboration
when vehicles are concerned (as Wells suggested) or not? This uncertainty,
created by the asymmetry of the majority opinions in Wells and the instant case, ill
serves the bench, the bar, and—most importantly—the law enforcement
authorities who are charged with the daily implementation of these increasingly
complex legal rules.
I would instead pare down the analysis to its essential core and hold—as
J. L., supra, 529 U.S. 266, instructs—that an anonymous tip to police cannot
justify a suspect’s detention or search unless it is corroborated as to some aspect of
the criminal activity reported, or other facts exist demonstrating the reliability of
the tip and/or the veracity of the tipster. Here, unlike in Wells, the tip itself
provided some evidence the tipster was speaking from personal knowledge,
having himself been the victim of the reported potentially violent crime that
occurred only moments before. Under such circumstances, the tip, though
essentially anonymous, bore sufficient indicia of reliability to provide police with
reasonable cause to detain and search defendant. Accordingly, I concur in the
9
result the majority reaches today, although, as explained above, I do not join in the
whole of its reasoning.
WERDEGAR, J.
I CONCUR:
MORENO, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Dolly
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 128 Cal.App.4th 1354
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S134505Date Filed: February 1, 2007
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Jesus I. Rodriguez
__________________________________________________________________________________
Attorneys for Appellant:
George L. Schraer, under appointment by the Supreme Court, and Sally P. Brajevich, under appointment bythe Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
George L. Schraer5173 Waring Road, #247
San Diego, CA 92120
(619) 582-6047
Peggie Bradford Tarwater
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-6097
Opinion Information
| Date: | Docket Number: |
| Thu, 02/01/2007 | S134505 |
Parties
| 1 | Dolly, Norman J. (Defendant and Appellant) Pleasant Valley State Prison Represented by George L. Schraer Attorney at Law 5173 Waring Road, Suite 247 San Diego, CA |
| 2 | Dolly, Norman J. (Defendant and Appellant) Pleasant Valley State Prison Represented by California Appellate Project - La 520 South Grand Avenue, Suite 400 520 South Grand Avenue, Suite 400 Los Angeles, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Peggie Bradford Tarwater Office of the Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| Disposition | |
| Feb 1 2007 | Opinion: Affirmed |
| Dockets | |
| Jun 3 2005 | Petition for review filed appellant Norman J. Dolly |
| Jun 7 2005 | Received Court of Appeal record |
| Jul 18 2005 | Received Court of Appeal record |
| Jul 19 2005 | Received additional record |
| Jul 25 2005 | Time extended to grant or deny review to and including September 1, 2005, or the date upon which review is either granted or denied. |
| Aug 10 2005 | Petition for review granted; issues limited (criminal case) Petition for review GRANTED. The issue to be briefed and argued is limited to the following: Can an anonymous tip to police that a specific suspect possesses a gun provide reasonable suspicion for a felony stop, where the police corroborate the innocent details of the tip, but do not corroborate the assertion of illegality? Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, and Moreno, JJ. |
| Sep 19 2005 | Counsel appointment order filed George Schraer for Appellant. |
| Oct 14 2005 | Request for extension of time filed By counsel for appellant requesting a 30-day extension to and including November 18, 2005 to file appellant's opening breif on the merits. |
| Oct 20 2005 | Extension of time granted To November 18, 2005 to file Appellant's Opening Brief on the Merits. |
| Nov 14 2005 | Request for extension of time filed Appellant is asking to Dec. 18, 2005 to file the opening brief on the merits. |
| Nov 17 2005 | Extension of time granted to Dec. 18, 2005 for appellant to file the opening brief on the merits. |
| Dec 20 2005 | Opening brief on the merits filed Norman Dolly, defendant and appellant George Schraer, appointed counsel (timely per CRC 40.1b) |
| Dec 28 2005 | Exhibit(s) lodged |
| Jan 11 2006 | Request for extension of time filed to file respondent's answer brief on the merits. Requesting to February 16, 2006. |
| Jan 17 2006 | Extension of time granted to 2-16-06 for for respondent to file the answer brief on the merits. |
| Feb 9 2006 | Request for extension of time filed answer brief/merits to 3-20-06 Deputy Attorney General Peggie Tarwater |
| Feb 16 2006 | Extension of time granted to March 20, 2006, for respondent to serve and file the answer brief on the merits; based on the representation of Peggy Bradford Tarwater, counsel for respondent, that she does not anticipate the need for further extensions. No further extensios of time are contemplated. |
| Feb 28 2006 | Received: From Deputy Atty. Gen'l. Peggy Tarwater requested court send exhibit A [audio cassette] down to l.a. office for review. |
| Mar 1 2006 | Compensation awarded counsel Atty Schraer |
| Mar 7 2006 | Note: A reproduction of the audio recordings (exhibit A) is being sent to the Supreme Ct. L.A. office by overnite shipment for review by the A.G. |
| Mar 16 2006 | Request for extension of time filed to file answer brief on the merits. Requesting to April 19, 2006 Peggie Bradford Tarwater, Deputy Attorney General |
| Mar 27 2006 | Extension of time granted Time extended to 4-19-06 for respondent to file the answer brief on the merits. Absent a compelling show of good cause, no further extensions of time will be granted. |
| Apr 14 2006 | Request for extension of time filed to file answer breif on the merits. Peggie Bradford Tarwater, Deputy Attorney General (counsel) |
| Apr 19 2006 | Extension of time granted To May 1, 2006 to file respondent's answer brief on the merits. No further extensions of time will be granted. |
| May 1 2006 | Answer brief on the merits filed Respondent People Deputy Attorney General Peggie Bradford Tarwater |
| May 15 2006 | Request for extension of time filed by appellant requesting a 30- day extension to and including June 21, 2006 to file appellant's reply brief on the merits. Norman J. Dolly, Appellant by George L. Schraer, counsel |
| May 24 2006 | Extension of time granted to 6-21-06 for appellant to file the reply brief on the merits. |
| Jun 19 2006 | Note: |
| Jun 21 2006 | Received: Appellant's (oversize) reply brief on the merits, with application |
| Jun 22 2006 | Reply brief filed (case fully briefed) Norman Dolly, defendant and appellant George Schraer, counsel (oversize brief permitted) |
| Oct 3 2006 | Case ordered on calendar November 7, 2006 at 9:00 am in Sacramento |
| Nov 7 2006 | Cause argued and submitted |
| Jan 31 2007 | Notice of forthcoming opinion posted |
| Feb 1 2007 | Opinion filed: Judgment affirmed in full Majority opinion by Baxter, J. ----------------joined by George, C.J., Chin, Corrigan, JJ. Concurring opinion by Kennard, J. Concurring opinion by Werdegar, J. ------------joined by Moreno, J. |
| Mar 9 2007 | Remittitur issued (criminal case) |
| May 23 2007 | Compensation awarded counsel Atty Schraer |
| Aug 15 2007 | Compensation awarded counsel Attorney Schraer |
| Briefs | |
| Dec 20 2005 | Opening brief on the merits filed |
| May 1 2006 | Answer brief on the merits filed |
| Jun 22 2006 | Reply brief filed (case fully briefed) |
