People v. Loewen

• Decision Date: 08 December 1983
• Docket Number: Cr. 23248
• Citation: 196 Cal.Rptr. 846,35 Cal.3d 117,672 P.2d 436
• Court: California Supreme Court
• Parties: , 672 P.2d 436 The PEOPLE, Plaintiff and Respondent, v. Allan Dale LOEWEN, Defendant and Appellant.

Page 846

196 Cal.Rptr. 846

35 Cal.3d 117, 672 P.2d 436

The PEOPLE, Plaintiff and Respondent, v. Allan Dale LOEWEN, Defendant and Appellant.

Cr. 23248.

Supreme Court of California,

In Bank.

Dec. 8, 1983.

George L. Schraer, Deputy State Public Defender, San Francisco, for defendant and appellant.

Richard E. Tullis, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BIRD, Chief Justice.

May a police officer, consistent with the Constitution, stop a vehicle because he suspects the driver is an associate of another individual who is being investigated for a parking violation in a "high crime area"?

I.

On April 14, 1982, Lake County Sheriff's Deputy Steven Cozart was on duty as a uniformed officer in a marked patrol car. At approximately 2 p.m., Cozart saw a blue Ford Cortina illegally parked and blocking access to a dirt side road. A young man was sitting on the hood of the car. The car had red bandanas covering the taillights.

Cozart stopped and approached the man, who identified himself as Thomas Landrum. Cozart asked Landrum to move the car, and he agreed to do so. When questioned, Landrum stated that he was waiting for "Bub" or "Bubby," who had driven into a nearby housing development to collect money owed him by one of the residents. Landrum had been asked by Bub to stay behind because Bub's friend did not like strangers to know where he lived. Landrum did not know Bub's last name or the name of the Bub's friend, but described Bub's vehicle as a yellow Datsun pickup. Cozart testified that Landrum's hands were shaking and that he looked at the ground as he was talking.

A warrant check was run on Landrum and his car, with negative results. As Cozart was instructing Landrum to move his car, a yellow Toyota pickup containing two persons approached at a normal rate of speed. As the truck drove past, both occupants looked toward Cozart and then looked away. The truck accelerated and continued down the street. Cozart noted the license plate number and asked Landrum if that was his friend. Landrum stuttered and then replied that it was not. He told the officer that Bub had long hair and a beard and that his vehicle was a Datsun and had a metal rack on the back. The driver of the pickup was clean shaven, and the vehicle had no such rack.

Cozart testified that he had no intention of arresting Landrum or giving him a citation for illegal parking or a possible equipment violation. Landrum was neither cited nor detained further. Instead, Cozart got into his patrol car, turned around, and pursued the pickup. En route, he radioed in a warrant check on the pickup's license plate number. The warrant check came back "clear" and revealed that the owner of the truck was an Allan Loewen who lived in Clear Lake. Failing to find the truck, Cozart radioed Officers Carl Stein and Wesley Frey to come to the area.

Cozart then stopped to telephone the Sheriff's substation, which put him in contact with Officer Stein. ¹ Cozart gave Stein additional details concerning Landrum, including the license number and ownership of the pickup truck. A request was made that the truck be stopped "for identification purposes."

Officers Stein and Frey were in plainclothes and travelling in an unmarked police car. They spotted the yellow truck and followed it for approximately seven miles. No vehicular violations were noted during this time. Finally, the officers stopped the pickup, and requested identification from the driver and his passenger. A subsequent consent search turned up a sawed-off shotgun and two stolen chain saws.

Appellant, the driver of the truck, was charged with receiving stolen property (PEN.CODE, § 496 )², possession of a sawed-off shotgun (§ 12020), and possession of a firearm by an ex-felon (§ 12021). Motions to suppress evidence and to set aside the information (§§ 1538.5, 995) were denied by the court, and appellant pled guilty in a negotiated settlement to receiving stolen property. All the other charges were dismissed. In this appeal, appellant challenges the denial of his pre-plea motions. (§ 1538.5, subd. (m).)

II.

Appellant contends that the officers had insufficient justification to stop his vehicle and search it. ³ Since the stop was unlawful, he argues, the fruits of the consent search conducted subsequent to the stop should have been suppressed. (People v. Haven (1963) 59 Cal.2d 713, 718-719, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Franklin (1968) 261 Cal.App.2d 703, 707, 68 Cal.Rptr. 231; see also Wilson v. Superior Court, supra, 34 Cal.3d at p. 791, fn. 12, 195 Cal.Rptr. 671, 670 P.2d 325; cf. Florida v. Royer (1983) --- U.S. ----, ---- [103 S.Ct. 1319, 1325-1326, 75 L.Ed.2d 229, 238-239].)

The law is well-established that "in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Kiefer) [1970] 3 Cal.3d 827 [91 Cal.Rptr. 729, 478 P.2d 449] ), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio [1968] 392 U.S. 22 .)" (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted; see also Reid v. Georgia (1980) 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890; Brown v. Texas (1979) 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357.)

An appellate court's review of a motion to suppress evidence is also governed by well-settled principles. The trial court's factual findings relating to the challenged search or seizure, "whether express or implied, must be upheld if they are supported by substantial evidence." (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) " 'The trial court also has the duty to determine whether, on the facts found, the search was unreasonable within the meaning of the Constitution.' (Ibid.) Because 'that issue is a question of law,' the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather, ... in such review it is 'the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.' (Ibid.) On that issue, in short, the appellate court exercises its independent judgment." (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961, fn. omitted, quoting People v. Lawler, supra, 9 Cal.3d at p. 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Here, the facts are undisputed. Deputy Cozart's decision to detain the truck via Officers Stein and Frey was based upon his "feeling" that its occupants had been involved in criminal activity. However, Cozart's good faith suspicions--aroused, as they were, in the absence of any reports linking any of the individuals involved here to specific criminal activity--fell short of the constitutional standard of reasonableness necessary to justify a detention.

At the hearing, Cozart offered four reasons in support of his decision to detain the truck: (1) an increase in the incidence of thefts in the area, (2) Landrum's nervous behavior, including the explanation for his presence and his denial that "Bub" was in the passing truck ⁴; (3) the similarity between the yellow Toyota and "Bub's" vehicle as Landrum had described it; and (4) the manner in which the occupants of the pickup reacted as they passed the officer. Each of these factors will be considered in turn.

Reliance on the "high rate of crime" in the area must be rejected. An "officer's assertion that the location lay in a 'high crime' area does not elevate ... facts into a reasonable suspicion of criminality. The 'high crime area' factor is not an 'activity' of an individual. Many citizens of this state are forced to live in areas that have 'high crime' rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a location's crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]" (People v. Bower (1979) 24 Cal.3d 638, 645, 156 Cal.Rptr. 856, 597 P.2d 115; see also Brown v. Texas, supra, 443 U.S. at p. 52, 99 S.Ct. at p. 2641.) Clearly, it was improper to detain appellant based on this factor.

In addition, the evidence of "high crime" which Cozart testified to underscored the inappropriateness of relying on that factor in this case. Cozart testified that 25 to 30 thefts--a "significant" increase--had been reported in the area during the few months preceding appellant's detention. Many incidents involved tools stolen out of pickup trucks. However, none of the thefts Cozart had investigated involved a blue Ford or a yellow pickup. Nor was a Thomas Landrum or "Bub" associated with any of the reported thefts. Also, none of the incidents involved an individual blocking access to a public roadway. In short, as is frequently the problem when a "high crime area" factor is relied upon, Cozart offered no evidence as to "how the allegedly suspicious activity [was] related to the type of activity upon which that crime rate estimate [was]...