Filed 10/10/13 P. v. Parker CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E057160

v.                                                                       (Super.Ct.No. INF1200078)

RONALD DUVERN PARKER,                                                    OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos

and Charles Everett Stafford, Jr., Judges. Affirmed.

         Paul E. Zellerbach, District Attorney, Matt Reilly, Vincent Chen and Natalie M.

Pitre, Deputy District Attorneys for Plaintiff and Appellant.

         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and

Respondent.

         The People filed an information charging defendant and respondent, Ronald

Duvern Parker, with unlawful possession of methamphetamine and drug paraphernalia.




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The trial court granted defendant’s motion below to suppress evidence produced as a

result of the detention and patdown search of defendant. The People were unable to

proceed to trial after the court granted the motion to suppress. The trial court dismissed

the case. The People now appeal, contending that the trial court erred in granting the

motion to suppress. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On January 1, 2011, Officer Nicholas Barth was on patrol in Palm Springs. At

12:27 a.m., i.e., just after the clock turned over into the new year, Officer Barth heard

another officer announce on the radio that shots had been fired. Officer Barth was

patrolling on North Palm Canyon Drive, and the suspected shots fired had occurred near

a bar about a mile from Barth.

       Officer Barth decided to investigate. He drove southbound on North Palm Canyon

Drive, passing a convenience store and a hotel along the way. Officer Barth saw a man,

later identified as defendant, walking northbound along North Palm Canyon Drive. The

man wore a dark hooded sweatshirt, dark colored pants, and a flat-brimmed hat that he

had pulled down, obscuring his face. The man was about one-fourth of a mile away from

the bar where the shots had been reported. The short distance from the bar, together with

the man’s dark clothing, drew Officer Barth’s attention. In addition, as Officer Barth

drove past the man, the man appeared to look right at the officer; he then put his hands in

his pockets and looked away. Officer Barth thought the man might be involved in a




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shooting, because “it’s common for somebody, if they have a weapon on them and they

see police, to shove their hands where the weapon is.”

       Officer Barth was concerned for his safety if he decided to confront the man there

on the street; instead, he decided to go to the convenience store to see if he could

intercept the man there. Officer Barth advised dispatch that he would be on a pedestrian

check, and described the man as a Hispanic male adult, wearing a dark hoodie and a hat.

       A short time later, the man “came around the corner” near the store; Officer Barth

“approached him on foot and asked him to place his hands upon his head and to turn

away from me.” Officer Barth testified that the man—later identified as defendant

Ronald Parker—had only been out of his sight for a few seconds between the time he had

seen defendant on the street, and the time he saw defendant in the store parking lot.

       Officer Barth informed defendant that “I believed that he may have a weapon, and

that I was going to perform a pat-down [sic].” Initially, Officer Barth confronted

defendant alone, but three other officers arrived soon after. Officer Barth testified that he

thought defendant might have a weapon because of the earlier “shots-fired” call at the

bar. He also thought it was “easy to conceal a firearm in bagg[y] clothing. It’s hard to

see when someone is wearing bagg[y] clothing if they have something in their waistband.

And the fact that he put his hands in his pockets upon seeing me.”

       Defendant complied with Officer Barth’s order to put his hands on his head and

turn around. Officer Barth performed a patdown search. Officer Barth also asked if




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defendant was on probation or parole, and defendant stated that he was on parole. As he

patted down the outside of defendant’s sweatshirt pocket, Officer Barth felt a cylindrical

object with a bulbous end, which he believed was a narcotics pipe. Officer Barth asked

to search defendant’s pockets; inside the sweatshirt pocket he found a black sock

containing a glass methamphetamine pipe. He also found a small baggie containing

suspected methamphetamine.

       On February 22, 2012, the People filed an information charging defendant with

possession of controlled substances (methamphetamine) and of drug paraphernalia (the

pipe). The information also alleged one strike prior and three prison term prior offenses.

       Defendant moved to suppress evidence under Penal Code section 1538.5. He

argued that the search and seizure of his person violated the Fourth Amendment. The

trial court granted the motion.

       On the date set for trial, the People announced that they were unable to proceed, in

the absence of the suppressed evidence. The trial court dismissed the case pursuant to

Penal Code section 1385.

       The People have filed a timely notice of appeal.

                                       ANALYSIS

                                  I. Standard of Review

       “When we review a trial court’s ruling on a suppression motion, we defer to the

court’s factual findings that are supported by substantial evidence. (People v. Hughes

(2002) 27 Cal.4th 287, 327 [116 Cal.Rptr.2d 401, 39 P.3d 432].) Whether a search is




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constitutionally reasonable, however, is a legal question upon which we exercise our

independent judgment. (Ibid.)” (People v. Medina (2007) 158 Cal.App.4th 1571, 1575.)

          II. The Trial Court Properly Granted the Motion to Suppress Evidence

        The People argue that Officer Barth articulated specific facts to justify a temporary

detention of defendant. “A detention is reasonable under the Fourth Amendment when

the detaining officer can point to specific articulable facts that, considered in light of the

totality of the circumstances, provide some objective manifestation that the person

detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224,

231.)

        The facts relied upon are that Officer Barth heard a broadcast of a report of “shots

fired,” sometime shortly after midnight on New Year’s Eve/early morning hours of New

Year’s Day. The shots had reportedly been fired just north of a named bar, about one

mile from where Officer Barth was patrolling in Palm Springs. He decided to drive

toward the bar along North Palm Canyon Road. He passed a convenience store and a

hotel, and saw defendant walking along the road. Defendant was wearing dark clothing

and a hat pulled down over his face. Defendant appeared to look at the officer, and then

thrust his hands into the pockets of his hooded sweatshirt, and partially turned away. It

was a “high-crime area.” From these factors, Officer Barth decided that defendant must

have been “involved in some sort of crime possibly related to the shooting.”

        The articulated facts were insufficient to support a reasonable suspicion that

defendant had been involved in any criminal activity. As the court below stated, “You

have to put it in context. This was January 1st, New Year’s Eve, New Year’s Day. The


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shot situation, there was shots going off all over the valley over New Year’s. In this

particular case, we have a report of shots fired, but it’s not definitive as to where it

actually took place. We think it’s around the Toucan’s Bar area, but no one knows

exactly where. [¶] There is no description of any possible subject that might be involved

in the shooting; no description whatsoever. The officer that testified is some distance

away when he gets the call that he heard that shots were fired in the general vicinity of

Toucan’s Bar, and he proceed[s] in that direction. [¶] He [sees] an individual walking on

the street, not doing anything other than walking down the street. It’s not unusual for

people to be out and about a little after midnight on New Year’s Eve, New Year’s night.

So just being out on the street that is not unusual. The dress that the individual was

in – – while some people might view the clothing as what someone might be wearing if

they were engaged in criminal activity, a hoodie in this day and age is a popular item of

clothing.”

       The court also considered the officer’s actions inconsistent with his stated beliefs.

“If the officer had some basis to believe that this individual was involved in a shooting

just minutes prior – – I don’t think an officer at that point in time would have allowed the

gentleman to leave that area where he was first observed, to give him an opportunity to

leave, or to get rid of [the] weapon, or to whatever. I don’t think an officer fully

believing that this individual was armed and part of a shooting would have let him go.”




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       Officer Barth had also called in his pedestrian check of a Hispanic male. The

court commented particularly on this: “This officer, for some reason, believes that the

person he saw was Hispanic,” but there was no call or other information indicating the

nationality or ethnicity of any particular shooter. At the hearing, Officer Barth testified

that, “the hat was pulled down over his face. Like I said, it was pulled down over his face

so far down that he was hard to identify. I thought this was a Hispanic male.” The court

queried, “If he was wearing a hoodie and wearing a hat and the hat was pulled down over

his face, and he was wearing baggy pants, how did you ascertain whether or not he was

Hispanic?” Officer Barth admitted, “I don’t know.” Although no one at the hearing

clearly came out and said so, inferentially from the court’s focus on Officer Barth’s

identification of the subject as “Hispanic,” and Officer Barth’s admission that he did not

know why he thought the subject was Hispanic, defendant evidently was not Hispanic.

The court had “real concerns in my mind how he was able to indicate that the individual

was Hispanic, and that basically he ran that over the radio that he was stopping somebody

that was Hispanic when he had nothing upon which to base.”

       Further, “it was not a pedestrian stop. He didn’t ask the individual who he was

and why he was in the area. That’s a pedestrian stop. This was where he basically had in

his mind that he was involved in a shooting, and he had a weapon. It was based on a

hunch. It was based on speculation in the officer’s mind, not based on anything

substantive that would give a person reasonable cause to believe that he was involved in a

shooting or had a weapon.”




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       Defendant’s actions were “normal activity,” which did not give a reasonable

suspicion of anything criminal or untoward. “The individual is just walking down the

street wearing certain clothes, not doing anything at a time when it is reasonable to

assume that there would be a lot of people walking around, not only in that area but

probably all over Palm Springs and the valley. It’s after midnight on New Year’s Eve

and New Year’s morning. That’s not unusual conduct.”

       The trial court properly found that the evidence was insufficient to raise an

objectively reasonable suspicion that defendant was engaged in any criminal activity

whatsoever, and certainly nothing upon which to base any belief that defendant had a

weapon. The detention was not justified.

       The patdown search was also unlawful. During a temporary detention, an officer

may be justified in conducting a brief patdown search, “[w]hen an officer is justified in

believing that the individual whose suspicious behavior he is investigating at close range

is armed and presently dangerous to the officer or to others.” (Terry v. Ohio (1968) 392

U.S. 1, 24 [88 S.Ct. 1868, 20 L.Ed.2d 889].) Here, however, as already indicated, Officer

Barth had no articulable reason to believe that defendant was armed or dangerous. The

unjustified belief that defendant may have been armed was the entire reason for the

detention in the first place. The absence of any evidence to suggest that defendant was

armed precluded not only the detention, but also any justification for a patdown search.

       The trial court properly granted defendant’s motion to suppress the evidence

produced as a result of the search.




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                                      DISPOSITION

       The trial court properly granted defendant’s motion below to suppress the

evidence obtained as the result of an unlawful detention and search. The judgment of

dismissal, based on the People’s inability to proceed, is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                       J.
We concur:



HOLLENHORST
          Acting P. J.



MILLER
                          J.




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