People v. Jordan

• Decision Date: 10 August 2004
• Docket Number: No. F043779.,F043779.
• Citation: 121 Cal.App.4th 544,17 Cal.Rptr.3d 157
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ricky Lawrence JORDAN, Defendant and Appellant.

17 Cal.Rptr.3d 157

121 Cal.App.4th 544

The PEOPLE, Plaintiff and Respondent, v. Ricky Lawrence JORDAN, Defendant and Appellant.

No. F043779.

Court of Appeal, Fifth District.

August 10, 2004.

Larry L. Dixon, Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAWSON, J.

Ricky Lawrence Jordan appeals from a judgment entered following his conviction by jury of possession of a firearm by a violent felon. (Pen.Code, § 12021.1, subd. (a).) Appellant contends that the superior court erred by denying his Penal Code section 1538.5 motion to suppress a handgun and statements obtained as the result of a Terry¹ stop and frisk initiated after the police received an anonymous 911 telephone tip. Appellant argues that (1) his parole search condition, which was not known to the officers at the time of the stop, did not validate the stop, and (2) the anonymous tip did not have sufficient indicia of reliability to create a reasonable, articulable suspicion justifying the stop.

We hold that the factual differences between this case and Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 are insufficient to merit a different result. In that case, the United States Supreme Court unanimously held that an anonymous telephone tip about an individual with a concealed handgun did not create a reasonable suspicion justifying a stop and frisk. We, of course, are bound by that holding. Also, in light of People v. Sanders (2003) 31 Cal.4th 318, 2 Cal. Rptr.3d 630, 73 P.3d 496, the parole search condition imposed on appellant did not validate the stop, frisk and seizure of the handgun. Therefore, the motion to suppress should have been granted. We will reverse the judgment of conviction and remand.

FACTS

On May 1, 2003, the Bakersfield police received an anonymous telephone tip about a man in a park who was carrying a concealed handgun. The telephone call was recorded; a written transcript of the 911 telephone call provides:

"Dispatcher: Bakersfield. 911.

"Male: Uh, operator?

"Dispatcher: Just a second. Hold on. You want an ambulance?

"Male: No, I need the police.

"Dispatcher: Okay. You need two ambulances?

"Male: No, I need the police.

"Dispatcher: No. Just a second. This an emergency?

"Male: Yes.

"Dispatcher: What's your emergency?

"Male: Uh, there's this guy up (unintelligible) on Baker and Sumner.

"Dispatcher: Yeah.

"Male: With a gun. He's wearing a black jacket, tan pants, white shirt, bald head.

"Dispatcher: Is he black, white or a M — Hispanic?

"Male: Black. Light skinned. He's been threatening to shoot people.

"Dispatcher: What kind of gun?

"Male: Uh, small, like a .22, .25.

"Dispatcher: How old is the guy?

"Male: About late 30's, wearing red boots.

"Dispatcher: Black jacket, tan pants, red boots.

"Male: Yeah, white, white shirt.

"Dispatcher: Where does he keep it?

"Male: Uh, in his left—no his right pocket.

"Dispatcher: Front pants pocket?

"Male: Uh jacket.

"Dispatcher: He's got in his right jacket pocket?

"Male: Yes.

"Dispatcher: You gonna leave your name?

"Male: No.

"Dispatcher: And you said Sumner and Baker?

"Male: Yes.

"Dispatcher: Okay. Thank you.

"Male: Okay.

"Dispatcher: Bye."

Nothing in the record indicates how much time elapsed between the end of this telephone conversation and a subsequent radio dispatch to officers. The radio transmissions also were recorded; a written transcript of those transmissions provides in pertinent part:

"Dispatcher[²]: [T]o respond to a subject carrying a concealed weapon, possible at Baker and Sumner. I.D.

"Officer: Three Able Eight One.

"Dispatcher: Three Able Eight One, ten four. Unit to assist.

"Officer: Three Able Seven One from Jefferson Park.

"Dispatcher: Three Able Seven One, ten four. Both units. Subject is a black male in his 30's, black jacket, white shirt, tan pants and red boots. Possibly carrying a concealed hand gun in his right front coat pocket. R/P no contact.

"Officer: Three Able Eight One copy."

One of the officers who responded to the dispatch was Michael Gerrity, who was on duty, was in uniform, did not have a partner, and was driving a black and white patrol car. Officer Gerrity arrived at International Square Park in less than one minute after receiving the dispatch and parked the patrol car along Baker Street; the time was approximately 7:15 p.m. He left the patrol car and began to walk through the park. Gerrity saw an individual matching the broadcast description sitting on a park bench that was approximately 50 feet from where he had parked. Concerned with safety, Gerrity took a position behind a tree from which he was able to observe appellant, the individual who matched the description Gerrity had received from dispatch.

Six to 10 other people were in the park, but none of them matched the description given in the radio dispatch. The person closest to appellant was on a bike about 10 feet away. Officer Gerrity watched appellant from behind the tree for approximately 30 to 45 seconds. Appellant was not talking to anyone or engaged in any activity; he was sitting on the bench with his hands in his lap. Gerrity did not see any bulges in appellant's clothes and testified that appellant did not appear to be involved in criminal activity.

Officer Gerrity made eye contact with appellant and then motioned appellant over with his hand and said, "I'm a police officer. I need to speak to you. Please come back to me." Appellant rose from the park bench and again made eye contact with Gerrity, who told appellant to place his hands in the air, turn around and walk backwards to him. Appellant complied with the instructions.

Officer Gerrity noted that, when appellant stood, "his clothing was rather cumbersome, especially the jacket, and I couldn't see what was in front of him in his waistband or inside his pockets."

When appellant had backed up to him, Officer Gerrity took control of appellant by using his left hand to hold appellant's hands behind appellant's head, and using his right hand to feel on the outside of appellant's waistband and pockets. Prior to touching appellant, Gerrity told him that he was going to search him for weapons and asked if he was holding any weapons. Appellant did not reply.

Officer Gerrity felt a bag of sunflower seeds through the outside of appellant's jacket and, below the seeds, felt what he recognized as the backstrap of a gun. Gerrity asked appellant if he had a firearm in his pocket and, again, appellant did not reply. The officer then handcuffed appellant and retrieved the gun from the pocket. It was a small caliber, chrome-plated or stainless steel semiautomatic pistol. While Gerrity was frisking appellant, two other officers approached on foot and were present when the pistol was found. Gerrity handed the gun to one of those officers. Before leaving the park, Gerrity checked the pistol. The slide and magazine release were functional and the pistol was loaded with one round in its chamber and eight more rounds in its magazine.

Appellant was arrested and taken to the Bakersfield Police Department, where Officer Gerrity read him his Miranda³ rights. Appellant indicated that he understood his rights and that he would answer questions. Officer Gerrity asked appellant how he obtained the gun and appellant said he got the gun from a man known to him only as John.

PROCEEDINGS

In early June 2003, appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, asserting that the stop and frisk which led to his arrest was illegal under the Fourth Amendment standards set forth in Terry v. Ohio, supra, and that the evidence obtained was the poisonous fruit of that illegal action. The prosecution opposed the motion on the grounds that (1) appellant was a parolee at the time of the search and did not have a reasonable expectation of privacy, and (2) the patdown search was reasonable.

On June 30, 2003, a hearing was held on the motion to suppress. For purposes of the motion, the parties stipulated that (1) appellant was on active parole at the time of his arrest and was subject to the standard search clause, (2) there were no active warrants or any other reason relating to his parole status to bring him into custody, and (3) there was no search warrant issued at the time of the stop and frisk.

Officer Gerrity was the only witness to testify at the hearing. He testified that (1) he did not know who phoned in the tip, (2) he did not know how the tipster obtained the information, (3) the tip did not predict what the man with the gun was going to do, (4) during his observation and contact with appellant, appellant did not reach for or grab at the pocket where the gun was found or make any other threatening or unusual movements, (5) the gun was not visible to him before he felt it, and (6) he did not know that appellant was on parole when he found the gun.

On July 1, 2003, Judge Fielder denied the motion to suppress without comment. The case was tried to a jury on July 14, 2003, and the jury found appellant guilty of illegal possession of a firearm in violation of Penal Code section 12021.1, subdivision (a). Appellant then waived his right to trial on the alleged enhancements and admitted two 1981 robbery convictions, a 1984 rape conviction, a 1989 robbery conviction, a 1991 conviction for possession of a controlled substance, and a 1996 conviction for illegal possession of a firearm.

On August 21, 2003, Judge Wallace denied appellant's motion to strike prior convictions, denied probation and sentenced appellant to a term of 25 years to life plus two years for two prior prison terms.

DISCUSSION

I. Parole Search Condition Did Not Validate Search

The prosecution requested that the superior court deny the motion...