People v. Walker

• Decision Date: 30 January 2013
• Docket Number: H037287
• Citation: 210 Cal.App.4th 1372,152 Cal.Rptr.3d 424
• Parties: The PEOPLE, Plaintiff and Respondent, v. Everett Robert WALKER , Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

210 Cal.App.4th 1372

152 Cal.Rptr.3d 424

The PEOPLE, Plaintiff and Respondent,

v.Everett Robert WALKER , Defendant and Appellant.

H037287

Court of Appeal, Sixth District, California.

Filed October 18, 2012

As Modified on Denial of Rehearing November 15, 2012

Review Denied January 30, 2013

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 292 et seq.

Santa Clara County Superior Court No.: C1198729, The Honorable Marcel B. Poche

Rachel Sue Sussman, San Francisco, under appointment by the Court of Appeal for Appellant, Attorney for Defendant and Appellant Everett Robert Walker

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Attorneys for Plaintiff and Respondent The People.

Duffy, J.^*

Everett Robert Walker, a young Black man, disembarked late in the evening in November 2010 from a train at the light rail station in downtown San Jose. He was stopped by Santa Clara County Deputy Sheriff Frank Thrall, who suspected that defendant might have been one of two young Black male suspects involved in a sexual battery occurring one week earlier at the same station. The deputy asked defendant to show proof that he had paid fare, and he responded by asking why the deputy was singling him out among all passengers. Deputy Thrall indicated that he had a right to ask defendant for proof of fare and that he resembled a suspect in a sexual battery investigation; he then asked defendant for identification. After he was detained by the deputy and defendant produced an identification card determined to belong to someone else, he was arrested. A search incident to the arrest yielded cocaine base and marijuana.

Defendant moved to suppress seized evidence pursuant to Penal Code section 1538.5.¹ The court denied the motion to suppress. Defendant then pleaded guilty to the felony offense of cocaine base possession for sale or purchase, as well as a misdemeanor and an infraction. The court suspended sentencing and granted three years' probation.

Defendant challenges the conviction entered on his guilty plea, contending his detention, warrantless search, and arrest constituted an unreasonable search and seizure because Deputy Thrall did not have a reasonable and articulable suspicion that defendant had been or was about to be engaged in criminal activity. Defendant argues that because the deputy did not have a reasonable suspicion supporting his decision to detain defendant, his subsequent production of the false identification and the contraband discovered during the search of his person when he was arrested should have been suppressed. We agree with defendant that Deputy Thrall did not have a reasonable suspicion of defendant's involvement in criminal activity at the time he was detained. Accordingly, because the trial court's contrary finding was not based upon substantial evidence, we will reverse the order of probation and remand the matter to the trial court with directions to dismiss the cause.

PROCEDURAL AND FACTUAL BACKGROUND ²

I. The Information

Defendant was charged by information with possession of cocaine base for sale or purchase, a felony (Health & Saf.Code, § 11351.5); giving a false name to a peace officer upon lawful detention or arrest, a misdemeanor (§ 148.9); and possession of 28.5 grams or less of marijuana, an infraction (Health & Saf.Code, § 11357, subd. (b)).

II. The Motion to Suppress

A. Contentions

Defendant argued generally in his motion to suppress evidence pursuant to section 1538.5 that “[t]he detention, search, seizure and arrest in the present case were unreasonably conducted without a search or arrest warrant” and that “[a]ll evidence found as a result must be suppressed ...” He asserted further that because the search or seizure occurred without a warrant, it was the People's burden to provide evidence that the search or seizure was constitutionally justified.

The People opposed the motion. They argued that the detention and subsequent arrest of defendant were lawfully conducted. They claimed that the initial encounter was lawful because Deputy Thrall had a right to demand that defendant show proof that he had paid fare. The People cited section 640, subdivision (c) in support of this position. Secondly, they argued, citing Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, that defendant's detention was lawful because Deputy Thrall “ha[d] a reasonable suspicion that criminal activity [was] afoot and that [defendant was] connected with it. [Citation.]” That reasonable suspicion was based upon “the totality of [the] circumstances,” including the deputy's having observed defendant exiting the train at the station where a sexual battery had occurred one week earlier and having concluded“that Defendant resembled the suspect in many ways: height, weight, age, nose shape, hair color, hair line and skin color.”

B. Evidence

An evidentiary hearing followed on June 21, 2011. The evidence presented at the hearing, consisting of the testimony of two witnesses, follows.

Detective Henry Woo of the Santa Clara County Sheriff's Department prepared an e-mail on November 18, 2010, concerning an incident that had occurred one week earlier. He reported that there had been a sexual battery at approximately 12:20 p.m. on November 11, 2010, at the Santa Clara South light rail station in downtown San Jose. Detective Woo requested that deputies be on the lookout for two adult Black male suspects who had been involved in the incident. He described one of the suspects (Suspect One) as a “[B]lack male adult, approximately in his 20's, approximately six[-]one, 195, short afro, clean shaven, light complected, appeared unkempt[,] wearing a backpack.” Detective Woo described the other suspect (Suspect Two) as a “[B]lack male adult, 30's, approximately five[-]five, 195, short hair[,] unkempt with a body odor[,] wearing a black sweatshirt jacket with a hood and black pants.” He indicated in the e-mail that “[b]oth [suspects] appear to be regulars in the area as one pointed out his ‘crew’ nearby.” Detective Woo included as attachments to his e-mail several photographs of the suspects obtained from surveillance video.

On the evening of November 18, 2010, Deputy Thrall was working as “a member of the route stabilization team[,] which is a plain clothes detail which is responsible for directed enforcement within the public transportation system ... focus[ing] on street-level crimes ...” At the start of his shift that day at 2:00 p.m., he and other deputies were briefed by a supervisor about the November 11 sexual battery. Pursuant to the supervisor's instructions, Deputy Thrall reviewed Detective Woo's e-mail and its attachments and also viewed the surveillance video capturing the November 11 crime. At approximately 10:15 p.m. that evening, he (in uniform) and two other deputies were patrolling the Santa Clara South light rail station. Deputy Thrall described the area as being “commonly known as Fountain Alley. It's known to deputies ... as well as police officers ... as a high crime area, open area market for narcotic[s] sales.”

At that time, Deputy Thrall observed defendant aboard a southbound train. He noticed defendant in particular because “[h]e resembled one of the suspects from the sexual battery photos that [he] had seen earlier.” [¶] Specifically, he resembled one of the suspects in “[h]eight, weight, age, hairline from the photographs and the shape of his nose.” Deputy Thrall decided “to make contact with [defendant] and identify him as a possible suspect in the battery.” He approached the car in which defendant had been traveling while he was standing on the platform and asked him for proof of fare.³ Defendant asked why he was being singled out among all of the passengers. Deputy Thrall responded that he had the right to ask defendant to prove that he had paid for his ticket and further that defendant resembled a suspect in a sexual battery case and Deputy Thrall wanted to identify him. The deputy asked for identification, and defendant responded that he had none. Two other uniformed deputies arrived at that time; defendant was looking around and because Deputy Thrall thought he might attempt to flee, he asked defendant to have a seat on a bench located on the platform. The deputy again asked for identification, and defendant produced a San Jose State University student body card containing the name “Aalim Moor” with “a VTA fare sticker attached to it” for the period of August 25, 2010, to March 4, 2011. It appeared to the deputy to be a valid fare. Approximately five minutes elapsed from Deputy Thrall's initial contact to the time defendant produced the student identification.

Deputy Thrall handed the student body card to his partner and requested that he contact dispatch to perform a records check. As a result of this records check, the deputy learned that the birthdate of Aalim Moor was one month earlier than the birthdate defendant had indicated, and that Moor was six feet, two inches tall; Deputy Thrall testified that defendant “was significantly shorter than that.” Deputy Thrall concluded that defendant had provided false identification to a peace officer in violation of section 148.9 and therefore arrested him.

In a search of defendant after his arrest, a California driver's license showing defendant's true name was found. A booking photograph of defendant was introduced into evidence by the defense, which the deputy indicated was a fair and accurate depiction of defendant's appearance at the time of the arrest. Deputy Thrall testified that at the time of the arrest, defendant was 19 years old, five feet, 10 inches; weighed approximately 180 pounds; had short black hair; was of medium to dark complexion; had a mustache and a slight goatee; was well-groomed;...