• Consensual Encounters vs. Detentions
• A Show of Authority as a Detention
• Citizen Information and Reasonable Suspicion

The use of a patrol vehicle’s emergency lights and four officers surrounding a suspect’s vehicle constitutes a detention which, if not supported by at least a reasonable suspicion, is illegal.  Information from a private citizen, as reported to the police, that persons are engaged in “shady activity,” without further explanation, is insufficient to constitute the reasonable suspicion necessary to justify a detention.

On March 13th, 2019, at around 6:00 p.m. four San Diego patrol officers were handling an unspecified issue in the Encanto neighborhood of southeast San Diego when they were approached by a woman who drove up in her car and stopped to talk to them.  She told one of the officers (as recorded [without audio] on the officer’s body worn camera in a short 40 second conversation) that she lived nearby, and provided her address.  She complained to the officer that there were some black males in a parked black Mercedes on her street who were “acting shady.”  There was no explanation as to specifically what these individuals were doing that she considered to be “shady,” and the officer apparently didn’t think to ask her to elaborate.  All four officers, in two marked patrol vehicles, drove to that location and found the Mercedes where she said it would be, legally parked, and with three young black males sitting inside.  Two of the officers pulled up directly behind the Mercedes, activating their vehicle’s emergency lights as they did so.  The other two officers parked immediately behind the first patrol car without activating their lights.  All four officers approached the Mercedes at once, positioning themselves at each of the car’s four doors.  The three teenage occupants were contacted, “directed to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays.”  Defendant Edgerrin J., sitting in the driver’s seat, initially gave a false name, but was quickly identified and found to be subject to a Fourth waiver condition of probation.  Co-defendant Jamar D. was a passenger.  (The third occupant, referred to only in a footnote as “D.W.,” is not further mentioned in this written decision and was not a party to this appeal.)  Upon searching the Mercedes pursuant to defendant’s Fourth waiver, a loaded firearm was found under the driver’s seat.  Also recovered was a pair of sneakers, determined to be connected to a robbery, and a canister containing marijuana.  All three minors were arrested.  The San Diego County District Attorney filed W&I Code 602 petitions in Juvenile Court, accusing defendant Edgerrin and co-defendant Jamar of robbery, receiving stolen property, and various weapons-related charges, along with associated enhancements. Defendant Edgerrin was additionally charged with providing false information to a police officer. Defendants’ joint motions to suppress the evidence obtained from the Mercedes was denied by the Juvenile Court magistrate, he finding that the contact constituted a consensual encounter only and rejecting the defendants’ arguments that they had been unlawfully detained.  Both defendants (after admitting to selected allegations in a plea bargained disposition) appealed. 

The Fourth District Court of Appeal (Div. 1) reversed.  Defendants Edgerrin J. and Jamar D. argued on appeal that the officers’ actions (i.e., turning on a police vehicle’s emergency lights and physically surrounding the occupants of a legally parked motor vehicle) constituted a detention.  Also, they argued that the citizen’s information concerning “shady” activity, without more, was insufficient to provide the officers with the reasonable suspicion needed to justify a detention.  Per the defendants, the discovery of defendant Edgerrin’s probation Fourth waiver and the evidence recovered from the vehicle, all being the products of an unlawful detention, should have been suppressed. The Court agreed with both arguments. 

(1)  The Contact as a Consensual Encounter:  It goes without argument that officers may approach a person on the street and talk to them.  If the person voluntarily answers, those responses, and the officer’s observations, are admissible in a criminal prosecution.  Such a contact is categorized as a “consensual encounter.”  “Such consensual encounters present no constitutional concerns and do not require justification.”  (People v. Brown (2015) 61 Cal.4th 968.)  The People argued in this case that the initial contact between the four San Diego P.D. officers and the defendants was a lawful consensual encounter.  However, case law tells us that such a contact can easily degenerate into a detention if not handled properly.  In this case, the Court held that defendants were in fact detained upon the initial contact in that by turning on the one patrol car’s emergency lights, and then surrounding the defendants’ vehicle, such a “show of authority” put the defendants into a position where no reasonable person would have felt that they were free to ignore the officers and leave.  One of the officers testified that the emergency lights were used for safety purposes; i.e., to “warn on-coming traffic of officers on foot.”  This may very well have been true.  The officers’ intentions, however, are not the issue.  The issue is the effect the use of a patrol vehicle’s emergency lights are likely to have on a reasonable person in the defendants’ shoes under the circumstances. “(A) seizure occurs if ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave . . . ’” (Brendlin v. California (2007) 551 U.S. 249, 255.) While California’s Supreme Court has previously noted that there is no “bright-line” rule in support of the argument that the use of a patrol vehicle’s emergency lights necessarily constitutes a detention (See People v. Brown, supra, at pp. 978, 980.), it is certainly a strong factor for the proposition that such a “show of authority” would lead a reasonable person to believe that he or she is not free to leave.  (See People v. Bailey (1985) 176 Cal.App.3rd 402.) And even if the use of the officers’ emergency lights was not a detention, the Court held that a detention “plainly occurred” immediately thereafter when four uniformed police officers all stepped out of their respective vehicles after having parked immediately behind the defendants’ Mercedes, walked up to the Mercedes so as to block each of the four doors, and direct the occupants to roll down their windows, hand over proof of identification, and provide their names, addresses, and birthdays.  Such a “show of authority” constitutes a situation where no reasonable person would have felt like he had the option of just ignoring the officers and walking (or driving) away.  As such, defendants were detained. 

(2)  Reasonable Suspicion Justifying the Detention:  The People made the alternative argument on appeal that if the contact between defendants and the four officers constituted a detention, then such a detention was legally justified under the circumstances.  Specifically, the People argued that information from an identified citizen (i.e.; a “citizen informant”) which, when combined with the officers’ prior knowledge that defendant Edgerrin was a gang member, and that he was present in rival gang territory during a “gang holiday,” and being in an area of the city known for its “gang violence” where “violent crime (is) a fact of life,” along with the fact that “it was significant that the tipster ‘felt the conduct she saw rose to the level of needing to flag down and tell the police,’” all constituted when combined sufficient information to justify the defendants’ detention.  (It is never explained what is meant by a “gang holiday.”)  On the issue of the officers’ prior knowledge concerning defendant Edgerrin’s probationary status and that he was known gang member, the Court found the record unclear, necessitating a remand to the Juvenile Court for an expanded evidentiary hearing.  So that issue was left unresolved.  But as for the argument that a detention could be based upon the citizen’s report to the officers alone, i.e., that she had observed defendants engaging in “shady” activity, without any other information, the Court found this information, when considered in insolation, was clearly insufficient justification for a detention.  “The ‘reasonable suspicion’ necessary to justify a stop (i.e., a “detention”) ‘is dependent upon both the content of information possessed by the police and its degree of reliability.’”  (Navarette v. California (2014) 572 U.S. 393, 397.)  While information coming from a so-called “citizen informant” may be considered reliable all by itself, the nature of that information must also be determined.  “Where officers rely on a citizen’s tip, that tip must be ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’” (People v. Dolly (2007) 40 Cal.4th 458, 471.)  A tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.”  To put this rule in the context relevant here, the Court held that the fact that someone might be engaged in “shady activity,” without any explanation as to what “shady” means, is not enough by itself to base a detention.  The citizen’s assertion that defendants were engaged in shady activity is just too vague—at least when left unexplained—to justify a detention.  “In isolation, an allegation of “shady” behavior is far too vague to suggest criminal activity.” As such, unless, on remand, the People can supplement this information with additional facts about defendant Edgerrin’s probationary and gang status that the officers might have known before the contact, the detention in this case must be considered unlawful.  Any fruits of such a detention may very well be suppressed as a result, dependent upon the results of the further proceedings to be held in the Juvenile Court.

So (while recognizing that hindsight is always 20-20), what could the officers have done differently to eliminate (or at least minimize) the issues in this case? First, and most obvious, the officers should have taken an extra 60 seconds and asked the woman what the suspects were doing that she considered to be “shaky.”  Just as a matter of officer safety, you would have thought that this question would have been obvious.  Secondly (and as suggested by the Court), the officers should have avoided going in like gang busters (“shock and awe ”), taking it a little slower, and planning their response.  Sitting back in the shadows and observing the suspects’ actions for a few minutes could have led to some observations that the officers themselves might have also considered “shaky,” and been ready to testify to.  As a patrol officer in the ‘70’s (admittedly aging myself), and having worked the Encanto area of San Diego, I used to carry some very expensive binoculars just for this very purpose, and found them to be exceedingly useful on more than one occasion.  Thirdly, when making contact, the officers could have kept it a lot more low key.  It was acknowledged in court that the officers intentionally descended upon the defendants’ Mercedes, utilizing a tactic referred to as “contact and cover,” and which is “designed to let people know there is more than one police vehicle present.”  That’s all very important from an officer safety standpoint, and I don’t mean to discourage that tactic when it might be necessary.  But going in en masse doesn’t help when it’s an issue whether a detention, as opposed to a consensual encounter, is legally justified.  So where there is not yet enough information upon which to justify a detention, the wisdom of minimizing the initial contact to one or two officers (assuming this can be done safely), as the others standby ready to jump in should it become necessary, might be considered.  In the alternative, holding back and delaying any contact even longer has to be considered.  Waiting until the suspects drive off and then watching for a traffic violation (i.e., a “pretext stop”) would have worked, for instance.  Bottom line is that in this case, too many officers went in too soon, making it hard to argue in court that the contact was nothing but a consensual encounter. 

One last thing:  Given what’s going in in this country today, as it relates to how law enforcement deals with various minorities, Justice William Dato, in a concurring opinion (at pgs. 770-772), felt it necessary to make certain observations that we have to expect to see more and more.  In fact, the issues discussed here can be expected to become (if they aren’t already) factors to consider when evaluating the existence of a reasonable suspicion or probable cause, etc., in any given case.  I will quote here only Justice Dato’s main points without further comment: 

“We have resolved this appeal without delving into complex issue of race      and policing, but I submit that as judges we must remain mindful of the broader context in which this case arose. . . . In situations like this, law enforcement officers must be sensitive to how implicit biases might influence what passersby perceive as a threat, just as judges must appreciate how officers on the receiving end of a vague, subjective tip might interpret the information they obtain. . . . Ultimately, there are myriad ways in which racial perceptions and biases might surface in a given criminal case, as in everyday life. And while the police officers here never inquired further to find out what exactly the tipster saw that concerned her, our opinion appropriately emphasizes the perils of relying solely on this type of report as a basis to detain. To that end, the objective standard of reasonable suspicion, which has always required more than a mere hunch to justify a detention, remains a vital safeguard for protecting our important Fourth Amendment rights.”