Filed 4/3/14 P. v. Jones CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139395
v.
LONNIE M. JONES,                                                     (Contra Costa County
                                                                     Super. Ct. No. 51211697)
         Defendant and Appellant.


         Defendant Lonnie M. Jones appeals from the trial court’s denial of his motion to
suppress evidence. He argues the court should have ruled the evidence was obtained as
the result of his unlawful detention just outside the Bay Area Rapid Transit (BART)
station in Concord, California. We disagree and affirm.
                                                 BACKGROUND
         In an information as amended, the Contra Costa County District Attorney charged
defendant with second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)),1 the use of a
dangerous weapon (§ 12022, subd. (b)(1)), and grand theft (§ 487, subd. (c)). Defendant
moved to suppress evidence, which motion was heard in June 2013.
         Concord Police Officer Sean Donnelly testified that on June 14, 2012, a
weeknight, about 9:05 p.m., he, still in uniform and armed, was gassing up his marked
police car right by the Concord police station before going home. He heard a dispatch
broadcast that an armed robbery had just taken place at a Safeway store several blocks


         1
             All statutory references are to the Penal Code unless otherwise noted.

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away. As other officers drove out of the police station with car lights and sirens on to
investigate, Donnelly decided to drive slowly in a bus lane to the Concord BART station
that was across the street from the police station. Donnelly put on his headlights, but did
not activate his emergency lights or siren.
        Donnelly, a police officer for 18 years who by his own estimate had investigated
100 robberies or more, went to the BART station because in his experience criminals
“often” went there to flee the area. At 9:07 p.m., as he drove slowly in the bus lane, he
saw defendant sprinting towards him from the direction of the Safeway store; the BART
station entrance was about 50 feet behind Donnelly. The BART station was open but
there were “hardly any other people out at this time,” and no one else was running.
Donnelly did not have a description of any robbery suspect at the time, but suspected
defendant was the perpetrator.
        Donnelly further testified that, as defendant and he got closer to each other,
defendant appeared to look at him, “abruptly stopped running,” and “just started
walking.” Without blocking defendant’s path, Donnelly got out of the driver’s side of the
police car and stood behind the car door. From a distance of about 20 or 25 feet, he
asked defendant in a conversational tone something like, “Hey, did you just come from
Safeway?” There was no train going by and no street traffic noise. In response,
defendant stopped walking, put his head down and said, “Yes.” Donnelly then asked if
defendant had a gun and “he said something to the effect of yeah, but [it’s] not a real
one.”
        Donnelly said, acting for his own and public safety, drew his gun, moved toward
defendant, ordered him to the ground, searched his person and backpack, and found a
black replica firearm and a woman’s orange purse. The victim arrived at the scene about
10 or 15 minutes after Donnelly first contacted defendant, identified her purse, and said
defendant was the man who had robbed her. Defendant was then arrested.
        After hearing from Donnelly, defendant, and his guardian (whose testimony the
trial court discounted, and argument from counsel, the court ruled the detention occurred
when Donnelly asked defendant if he was coming from Safeway and was justified based


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on the officer’s suspicions, which were reasonable under the circumstances.
Accordingly, the court denied defendant’s motion to suppress.
       Immediately after the hearing, defendant entered a no contest plea pursuant to a
negotiated disposition and was placed on probation for three years, subject to various
terms and conditions. Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant agrees with the trial court that he was detained upon Donnelly asking
him if he had come from Safeway, but disagrees with the court’s determination that
Donnelly had a legal basis for doing so. The subsequent information and evidence
obtained from defendant, including the gun and purse Donnelly found in defendant’s
backpack, were the fruits of this unlawful detention and, therefore, the trial court should
have granted his motion to suppress.
       Defendant’s argument lacks merit. We disagree with the trial court on one issue.
In our view, Donnelly did not detain defendant when he asked defendant if he was
coming from Safeway. However, our disagreement is meaningless because we also
conclude Donnelly would have been justified to do so, and certainly was justified to do so
after defendant said he was coming from Safeway and possessed a gun that was “not
real.” Therefore, the trial court correctly denied defendant’s motion.
       Initially, while we accept the trial court’s assessment of the facts, we must
exercise independent judgment in determining whether its conclusion about the point of
detention was correct. (People v. Hoyos (2007) 41 Cal.4th 872, 891, abrogated on
another ground by People v. McKinnon (2011) 52 Cal.4th 610, 641.) We apply an
objective standard—would a reasonable, innocent person in defendant’s circumstances
believe he or she was not free to leave or otherwise terminate the conversation? (Florida
v. Bostick (1991) 501 U.S. 429, 436, 438.) Accordingly, we do not consider that
Donnelly was investigating the robbery at Safeway because he did not tell defendant he
was doing so. We do, however, consider that defendant was sprinting to the BART
station and slowed to a walk upon happening on Donnelly’s police car, and all other



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circumstances which we can reasonably infer defendant was aware of at the time he
encountered Donnelly.
       We conclude a reasonable, innocent person in defendant’s circumstances would
not consider himself or herself detained upon being asked by Donnelly if he was coming
from a nearby Safeway store. Donnelly did not act out of the ordinary toward defendant.
For example, he did not drive toward defendant at a high rate of speed, screech to a halt,
activate his emergency lights or siren, shine a spotlight on defendant (Donnelly’s
headlights were on, as it was 9:00 p.m.), approach defendant, draw his weapon, raise his
voice, command or ask defendant to stop, or ask him any questions suggesting a
detention. Instead, Donnelly stopped his slow-moving police car in a BART station bus
lane, got out, and stood behind the car door as he asked defendant in a conversational
tone if he was coming from the Safeway store. The cases cited by defendant are
inapposite to these comparatively mundane facts. (See People v. Garry (2007) 156
Cal.App.4th 1100, 1103-1104, 1112 [officer in a high crime area shone a spotlight on the
defendant standing on a corner next to a parked car, rushed towards him, and said he
wanted to confirm that defendant lived nearby, as defendant asserted, and asked his
parole status]; People v. Roth (1990) 219 Cal.App.3d 211, 213 [officers shone a spotlight
in the defendant’s face and approached him as he walked alone in a parking lot about
1:20 a.m., saying they wanted to talk to him]; and People v. Jones (1991) 228 Cal.App.3d
519, 521-522 [officer pulled over his police car on the wrong side of the road and parked
diagonally against traffic, stepped out of the car and, as the defendant began walking
away, told him to stop].) In short, Donnelly’s actions and initial question did not suggest
any coercive action, nor suggest he was investigating possible criminal activity.
Donnelly made a simple inquiry, and a reasonable, innocent person could have easily
assumed he was soliciting information about something occurring at or around the
Safeway unrelated to criminal activity, such as a medical emergency or car accident.
Therefore, defendant and the trial court are incorrect in concluding defendant was
detained upon Donnelly asking if he was coming from the Safeway store.



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       Nevertheless, even assuming that a detention had occurred when Donnelly asked
this first question, we agree with the trial court that Donnelly had the requisite reasonable
suspicion to justify such a detention under the circumstances. When determining the
lawfulness of a temporary detention, we review the totality of the circumstances to see
whether the detaining officer had a particularized and objective basis “for suspecting the
particular person stopped of criminal activity.” (People v. Souza (1994) 9 Cal.4th 224,
230.) Such was the case here. Two minutes before encountering defendant, Donnelly
heard an armed robbery had just taken place at a Safeway store several blocks away, and
knew other officers had sped towards the Safeway in police cars, sirens and lights on, to
investigate. A veteran police officer, he knew from his own experience that persons
committing crimes in the area “often” fled the scene via the nearby BART station. He
saw defendant carrying a backpack sprinting from the direction of the Safeway store
toward the BART station entrance, only to abruptly slow to a walk when he noticed
Donnelly in his marked police car. No one else was running, whether from the direction
of Safeway or otherwise, there was no train going by, and there were very few people
around at 9:10 p.m. on a weeknight. Even though Donnelly did not have a description of
the robbery suspect at the time of the encounter, we conclude these undisputed facts were
sufficient for him to have a particularized and objective basis for suspecting defendant
could have been involved in the Safeway armed robbery, and to justify defendant’s
detention. (People v. Conway (1994) 25 Cal.App.4th 385, 390 [upholding a police
officer’s detention of a defendant and a companion, who police stopped in a car at three
in the morning, with no one else around, a quarter mile from the burglarized premises and
less than two minutes after receiving a report of a burglary in progress, although the
officer had no description of the suspects or whether they had a car].)
       Also, based on his reasonable suspicions (suspicions which were confirmed when
defendant indicated he possessed a weapon of some sort), Donnelly clearly detained
defendant when he drew his weapon and ordered defendant to the ground. That detention
was entirely reasonable under the circumstances. (People v. Souza, supra, 9 Cal.4th at
pp. 230-231.) This is a second, independent reason for affirming the trial court’s denial


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of defendant’s motion. (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th
1004, 1011 [“[a]ppellate review is confined to the correctness or incorrectness of the trial
court’s ruling, not the reasons for its ruling”].)
       Finally, defendant’s argument, made for the first time on appeal, that Donnelly
was not justified in searching defendant’s backpack because he did not first pat down the
backpack, borders on being frivolous. Defendant acknowledged to Donnelly that he had
a gun, albeit one that purportedly was not real. Donnelly was not obligated to believe
that the gun was not real and had every right as a matter of officer and public safety to
secure it from the backpack. (Terry v. Ohio (1968) 392 U.S. 1, 24; People v. Franklin
(1985) 171 Cal.App.3d 627, 635-636.)
                                       DISPOSITION
       The trial court’s order denying defendant’s motion to suppress is affirmed.


                                                     _________________________
                                                     Brick, J.*


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Richman, J.


      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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