Filed 4/22/14 Certified for publication 5/14/14 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



THE PEOPLE,                                                        D064641

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SCS264898)

SHAUNTREL RAY BROWN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Ana L.

Espana, Judge. Affirmed.

         Henry C. Coker, Public Defender, Randy Mize, Chief Deputy, Emily Rose Weber

and Robert L. Ford, Deputy Public Defenders, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Melissa Mandel and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and

Respondent.

         Shauntrel Ray Brown entered a guilty plea to one count of driving with a

measurable blood alcohol level of 0.08 percent or greater (Veh. Code, § 23152,
subd. (b)). Brown admitted that he had suffered three or more prior convictions for

driving under the influence within the previous 10 years and that his blood alcohol at the

time of this offense was 0.15 percent or greater (Veh. Code, §§ 23550, subd. (a); 23578).

       The court sentenced Brown to two years in local custody pursuant to Penal Code

section 1170, subdivision (h).

       Brown appeals contending the trial court erred in denying his motion pursuant to

Penal Code section 1538.5 to suppress evidence on Fourth Amendment grounds. We will

find the trial court properly decided the officer had reasonable suspicion to detain Brown

and that the court correctly concluded that in any event, Brown was already stopped

before the deputy attempted to contact him.

       In our analysis of the issues presented in this case we conclude that when a vehicle

is already stopped, without police action, merely activating emergency lights on a police

vehicle, without more, does not constitute a seizure within the Fourth Amendment.

Accordingly, we will disagree with the decision in People v. Bailey (1985) 176

Cal.App.3d 402 (Bailey), on which Brown relies.

                                 STATEMENT OF FACTS

       Since the only issues raised in this appeal relate to the denial of the motion to

suppress evidence we will recite the facts from the transcript of that motion.

       On the evening of May 26, 2013, a 911 call was made to the San Diego County

Sheriff's office reporting that a fight was taking place in an alley in the City of Imperial

Beach. The recording of the call was played for the court during the suppression motion.



                                              2
       The caller, who provided his location to the dispatcher, reported a fight involving

a number of people in an adjacent alley. There was a reference in the call to the presence

of a loaded gun possibly involved in the affray. The Sheriff's dispatcher alerted Deputy

Geasland about the "fight call" and the location. The deputy, in a marked patrol car,

arrived at the scene within three minutes of the call.

       The deputy drove down the alley where the fight was reportedly taking place. He

did not see any people in the alley, however, he encountered Brown who was driving his

car out of the alley. The deputy called out to Brown as he drove by asking, "Hey. Hey.

Did you see a fight?" Brown did not respond and continued out of the alley. The lack of

response and discovering Brown in the "exact location" of the reported fight aroused the

deputy's suspicion.

       Deputy Geasland was able to turn his car around and went in the direction he had

seen Brown take. When he got out of the alley, Geasland observed Brown's car parked

along the side of the road with the brake lights on. Geasland testified that he was

concerned because the call had mentioned a loaded firearm and was considering the

possibility that Brown had been injured. Therefore, Geasland pulled his patrol car in

behind Brown's parked car and turned on the patrol car's overhead emergency lights.

       The deputy then approached the car and made contact with Brown. He

immediately noticed that Brown appeared to be intoxicated. His eyes were watery and

bloodshot. He was mumbling and appeared flustered and upset. Geasland could smell

the odor of alcohol and asked Brown if he had been drinking and if he had been involved

in a fight. Brown answered affirmatively to both questions.

                                              3
       Geasland subsequently called a traffic unit to conduct further investigation of the

possibility that Brown had been driving under the influence.

       Deputy Geasland was the only witness to testify at the suppression motion.

       The trial court, after reviewing the 911 call and the testimony of Deputy Geasland,

concluded that Geasland was credible and accepted his testimony as true. The court then

denied the motion to suppress.

                                       DISCUSSION

                                              I

  DID THE DEPUTY HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY?

       Brown contends that we must treat the 911 call as an anonymous tip and further

argues that the call, plus the deputy's observations do not separately or collectively

amount to reasonable suspicion as required by Terry v. Ohio (1968) 392 U.S. 1. We

disagree with Brown's analysis. The call from an identified citizen reporting

contemporaneous observations is entitled to more credence than an anonymous tip,

absent some circumstance that may cause police to question the caller's reliability. The

deputy's immediate arrival on the scene and the nature of the reported activity, in our

view gave the deputy sufficient articulable facts to support reasonable suspicion that

criminal activity was taking place. Hence, the actions that followed were lawful.

                                    A. Legal Principles

                                  1. Standard of Review

       In ruling on a motion to suppress evidence on Fourth Amendment grounds, the

trial court first determines the facts underlying the police action and then must apply the

                                              4
law to those facts in order to resolve the dispute. (People v. Lawler (1973) 9 Cal.3d 156,

160.) On appeal we review the trial court's factual findings under the deferential

substantial evidence standard of review. Once we determine the trial court's factual

findings are supported in the record, we independently review the legal issues arising

from those facts. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Williams

(1988) 45 Cal.3d 1268, 1301; People v. Miranda (1993) 17 Cal.App.4th 917, 922.)

                                  2. Reasonable Suspicion

       Police may temporarily detain a person to investigate possible criminal activity

where the officer can point to specific facts that, considered in light of the totality of the

circumstances, provide some objective manifestation that the person to be detained may

be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) A finding

of reasonable suspicion of criminal activity requires less information than a finding of

probable cause. (Alabama v. White (1990) 496 U.S. 325, 330.) Police may base a

finding of reasonable suspicion on their own observations together with information from

other sources.

       In Alabama v. White, supra, 496 U.S. 325, the court held that an anonymous tip,

together with partial corroboration of the tip by police, could provide sufficient

information to justify an investigative detention. In evaluating police action courts can

consider the reliability of the information police receive from others.1 The evaluation of



1      In Illinois v. Gates (1983) 462 U.S. 213, 230, the court upheld a finding of
probable cause, based on an anonymous tip, without information about the tipster's
source of knowledge, in light of the corroboration done by law enforcement.
                                               5
the source of information depends on the nature of the source of the information and the

detail which it provides. Anonymous tips present the problem of lack of knowledge and

in some instances the source of the tipster's information. As a general proposition,

information from an identified citizen, based on that person's own observations, is at least

presumptively reliable, in the absence of any circumstance that may call the person's

reliability into question. (People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504-1505.)

       In People v. Dolly (2007) 40 Cal.4th 458, 461 (Dolly), the court considered a case

involving an anonymous tip about an assault with a deadly weapon which the caller had

observed. In that case the caller gave a detailed account of what had been observed and

particularly described the alleged assailant. (Id. at pp. 464-465.) The court considered

the nature of the criminal activity described, which the court found to present an urgency

for a police response. The court in Dolly distinguished its case from the circumstances of

Florida v. J.L. (2000) 529 U.S. 261, 273 (J.L.), in which the United States Supreme Court

found the anonymous tip was not sufficiently corroborated by police before restraining

the suspect. In J.L. the tip described a teenaged suspect who was standing on a street

corner. The tip alleged the minor had a gun under his shirt. Police accosted the minor

and frisked him without any information beyond the tip itself.

       The court's analysis in Dolly, supra, 40 Cal.4th 458, 463, included an evaluation of

various forms of tips to police. The court reasoned that tips reporting observations of on-

going dangerous activity with precise information have some enhanced credibility as

opposed to a generic anonymous tip, citing People v. Wells (2006) 38 Cal.4th 1078, 1083

(Wells). In Wells the court found an anonymous tip describing dangerous, reckless

                                             6
driving taking place could justify an investigative detention due to the exigent nature of

the risk presented by the alleged conduct.

       The court in Dolly, supra, 40 Cal.4th 458, continued with its analysis and

concluded that calls placed through the 911 system were entitled to some weight because

the caller faces a risk that police will be able to discover the caller's identity. Thus, such

a call is entitled to greater consideration than the generic anonymous tip. (Id. at p. 467.)

                                         B. Analysis

       Brown argues that the "anonymous" call, together with the deputy's observations

does not provide reasonable suspicion to justify a detention. We disagree.

       First, as Brown acknowledges, "the 911 call concerning a fight was more reliable

than a truly anonymous tip because the dispatcher knew the location of the call and could

hear some signs of an argument over the phone." Indeed, not only did the caller provide

his own precise location, it is clear, at least at the time of the motion to suppress that

defense counsel knew the identity of the caller, because counsel identified the caller in

the points and authorities filed in the reply papers. The call in this case was completely

different from the anonymous calls in J.L, supra, 529 U.S. 261 and Alabama v. White,

supra, 496 U.S. 325. Here an identified citizen called and reported potentially violent

activity taking place outside his home. Activity the dispatcher could hear. The Sheriff

was entitled to presume the caller to be reliable and the fact that sounds from the fight

were audible on the recording added to the reliability of the report.

       Brown argues that since the deputy did not personally hear the call the deputy

could not personally assess the reliability of the informant, thus the deputy could not rely

                                               7
on it. Understandably Brown cites no authority for the proposition that an officer, acting

on directions from a dispatcher, must personally assess the reliability of the person who

made the original 911 report.

       In this case the deputy arrived within three minutes of the citizen's call. The

record shows the call was entitled to greater weight than an anonymous tip and that it

reported potential violent activity involving a firearm. Thus, similar to the reports in

Dolly, supra, 40 Cal.4th at page 464 and Wells, supra, 38 Cal.4th at page 1083, the report

in the instant case was entitled to be deemed reliable observations of a percipient witness.

The deputy was entitled to act on the dispatcher's information.

       When the deputy arrived he found Brown leaving the exact location of the

reported fight. Brown did not respond to the deputy's questions when he passed him. As

the record shows the deputy became suspicious and was concerned that since a firearm

had been reported, Brown may have been injured or involved in the fight.

       Upon leaving the alley, after Brown had done so, the deputy discovered Brown's

car parked along the side of the road with the brake lights on. This discovery heightened

the deputy's suspicions as well as concerns for Brown's safety. As the phrase was used in

Terry v. Ohio, supra, 392 U.S. at page 19, the officer had sufficient facts to support

reasonable suspicion that "criminal activity may be afoot." We conclude the deputy had

sufficient information to justify detaining Brown at the point he observed Brown's car

parked outside the alley.




                                              8
                                             II

                            WHEN WAS BROWN DETAINED?

       Brown asserts he was detained the moment the deputy turned on the overhead

lights on the patrol car, even though Brown had previously stopped on his own. Brown

relies primarily on the opinion of the Sixth District Court of Appeal in Bailey, supra, 176

Cal.App.3d 402. There a divided panel of the court concluded that: "A reasonable

person to whom the red light from a vehicle is directed would be expected to recognize

the signal to stop or otherwise be available to the officer. Any reasonable person in a

similar situation would expect that if he drove off, the officer would respond by

following with red light on and siren sounding in order to accomplish control of the

individual." (Id. at p. 406.)

       The dissent in Bailey acknowledged that when a person yields to a display of

emergency lights, that the person has been seized. The dissent noted, however, there was

no evidence the defendant yielded to the show of authority as the defendant in that case

was already stopped without any reference to police action. (Bailey, supra, 176

Cal.App.3d at pp. 407-408 (dis. opn. of Agliano, J.).)

       Since the decision in Bailey, supra, 176 Cal.App.3d 402, the Sixth District has

somewhat narrowed or distinguished its holding. In People v. Perez (1989) 211

Cal.App.3d 1492, 1495-1496 (Perez), the dissenting justice in Bailey was the author of

the unanimous opinion for the court. There the court dealt with a case where the police

did not turn on the red lights when approaching a stopped car. Instead, the police used

their spotlight and high beams to illuminate the stopped vehicle. The court observed:

                                             9
"Unlike Bailey, the officer here did not activate the vehicle's emergency lights; rather, he

turned on the high beams and spotlights only. These differences are substantial because

the conduct of the officer here did not manifest police authority to the degree leading a

reasonable person to conclude he was not free to leave. While the use of high beams and

spotlights might cause a reasonable person to feel himself the object of official scrutiny,

such scrutiny does not amount to a detention." (Id. at p. 1496.)

       The basic thrust of the analysis in Bailey is that red lights are a showing that police

will chase you if you do not remain stopped. The analysis does not take into account, as

did the dissent, that there needs to be some evidence that the person yielded to that show

of authority. In the case of a stopped vehicle approached by police, we believe there

must be something more than merely activating the red lights to accomplish a detention,

because, as the majority in Bailey, supra, 176 Cal.App.3d 402 acknowledged, if you do

not yield, police may chase you.

       After Bailey, supra, 176 Cal.App.3d 402 and Perez, supra, 211 Cal.App.3d 1492

were decided, the U.S. Supreme Court decided California v. Hodari D. (1991) 499 U.S.

621 (Hodari D.). In that case, police officers wearing jackets which displayed the word

"Police" approached a group of young males. (Id. at p. 622.) Upon seeing the

approaching officers the group moved away. Police called out to the group that they

were police officers and demanded the young men to stop. Notwithstanding the officer's

clear showing of authority and their demands that the group stop, Hodari D. took flight.

Police gave chase and just prior to being tackled by a police officer, Hodari jettisoned a

package containing narcotics. (Id. at pp. 622-623.) Thus, the issue before the court was

                                             10
when was the defendant seized. The state appellate court held, consistent with Bailey that

the defendant was seized when the officers made their unequivocal demands that he stop.

Since the state court found there was not reasonable suspicion to detain Hodari D. at the

time of the demand, the state court concluded the narcotics were found as the result of an

unlawful seizure. The high court reversed, concluding that a mere showing of authority

is not enough to constitute a seizure. Rather, the court held that a seizure under the

Fourth Amendment only occurs when a person is physically prevented from leaving, or

when the person yields to a showing of police authority. (Hodari D., supra, at pp. 626-

629.)

        We disagree with the analysis of the majority in Bailey, supra, 176

Cal.App.3d 402 and agree with the dissenting opinion in that case. We recognize the

court's efforts in Perez, supra, 211 Cal.App.3d 1492 to distinguish Bailey, but

respectfully reject the notion that there is a material difference between the situation in

which a police car pulls in behind a stopped car and activates red lights and one in which

the same car uses high beams and spotlights. In both cases there is an apparent showing

of police presence and police interest in the occupants of the stopped vehicle. In both

instances there is a clear likelihood that police will give chase if the person drives off.

However, as the court in Hodari D., supra, 499 U.S. 621 has made clear, it is still

necessary to find that citizen yielded to that show of authority. As young Hodari

discovered, police will give chase, but mere demands, or even pursuit are not seizures

until the citizen accepts the command, either direct or implied, or when the police

succeed in restraining that person.

                                              11
       Applying Hodari D., supra, 499 U.S. 621, to the case before us, the record

supports the trial court's finding that Brown was not stopped by police nor was he

detained by the deputy until after the deputy approached the car and immediately

observed clear indications of intoxication. In any event, the deputy had reasonable

suspicion of criminal activity as soon as he pulled his car to a stop behind Brown's car.

The trial court correctly denied the motion to suppress.

                                      DISPOSITION

       The judgment is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



                   McINTYRE, J.


                   O'ROURKE, J.




                                            12
Filed 5/14/14

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



THE PEOPLE,                                         D064641

        Plaintiff and Respondent,

        v.                                          (Super. Ct. No. SCS264898)

SHAUNTREL RAY BROWN,                                ORDER CERTIFYING OPINION
                                                    FOR PUBLICATION
        Defendant and Appellant.



THE COURT:

        The opinion filed April 22, 2014, is ordered certified for publication.




                                                                   HUFFMAN, Acting P. J.

Copies to: All parties
