People v. Brown

Filed 8/6/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S218993

v. )

) Ct.App. 4/1 D064641

SHAUNTREL RAY BROWN, )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. SCS264898

____________________________________)

A deputy sheriff investigating an emergency call of a fight in progress

pulled his patrol car behind defendant Brown’s parked vehicle and activated the

emergency lights. Approaching the car, he saw Brown sitting behind the wheel,

apparently intoxicated. We conclude Brown was detained when the emergency

lights were activated. A reasonable person under the circumstances would not

have felt free to leave and Brown submitted to the show of authority by remaining

in his parked car. We further conclude that Brown’s brief detention was supported

by reasonable suspicion. Accordingly, we affirm the Court of Appeal’s judgment.

I. BACKGROUND

About 10:37 p.m. on a Sunday night, the San Diego County Sheriff’s

Department received an emergency call on its 911 line. The caller confirmed his

address with the dispatcher and reported some people were fighting in an alley

behind his home on Georgia Street in Imperial Beach. He could hear screaming

and one person said, “the gun was loaded.” The following colloquy ensued:

“911: And it sounds physical?

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“[Caller]: Yeah, they are fighting right now. You hear the screams?

“911: I hear it. So, you heard one person say they have a gun and it’s

loaded?

“[Caller]: Yes.”

The caller estimated that more than four people were involved, and said the

participants lived two houses down from him on the same block. The dispatcher

sent an officer to the scene and stayed on the line with the caller. The dispatcher

asked the caller to report any other mention of a weapon and asked if anyone had

gotten into a car. The caller said there was a car in the alley, facing south toward

Fern Avenue. He then relayed that he knew a squad car had arrived because he

heard the siren and saw the lights. When the caller confirmed the officer was on

the scene, the call ended. It had lasted approximately four minutes.

A dispatcher told Deputy Sheriff Geasland that four suspects were fighting

in the alley behind the caller’s residence on Georgia Street between Coronado and

Fern Avenues, and that “somebody may have said ‘something about a loaded

gun.’ ” Geasland was on the scene within three minutes. As he drove north in the

alley from Fern towards Coronado, he saw a car coming towards him and away

from the fight location. Geasland yelled to the driver, Brown, “Hey. Did you see

a fight?” Brown did not respond and kept driving. Geasland continued down the

alley but saw no one.

Geasland suspected Brown might have been involved in the fight because

he had come from that location and had failed to acknowledge the deputy’s

question. He was also concerned about the report of a weapon and the possibility

that Brown may have been injured. He turned around and drove in the direction

Brown had taken.

Geasland found Brown’s car parked on Georgia Street, a few houses down

from the house behind which the fight had occurred. He pulled behind Brown’s

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car and activated the overhead emergency lights on his patrol car. (See discussion,

post, at pp. 9-10.) He approached and spoke with Brown, who was in the driver’s

seat. Brown identified himself and produced his driver’s license. He appeared

upset and flustered. He was mumbling and had watery, bloodshot eyes. Geasland

could smell alcohol coming from the car. He asked if Brown had been drinking

and whether he had been involved in the fight. Brown admitted both. A traffic

deputy arrived and conducted further investigation for driving under the influence

(DUI).

Charged with felony DUI, Brown moved to suppress evidence of his

physical condition, statements, and breath test results as the fruits of an unlawful

detention. (Pen. Code, § 1538.5.) The trial court denied the motion, concluding

Brown had not been detained until the deputy saw signs of intoxication. At that

point, the deputy had a reasonable suspicion that Brown had been driving under

the influence.

Brown pleaded guilty to driving with a blood-alcohol concentration (BAC)

over .08 percent (Veh. Code, § 23152, subd. (b)) and admitted a BAC exceeding

.15 percent (id. § 23578). He also admitted suffering three prior DUI convictions

(id. §§ 23550, subd. (a), 23626), and was sentenced to two years in county jail

(Pen. Code, § 1170, subd. (h)).

The Court of Appeal affirmed the conviction, holding 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.” Alternatively, the court held that, if a detention did occur, it was

supported by reasonable suspicion.

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II. DISCUSSION

An officer may approach a person in a public place and ask if the person is

willing to answer questions. If the person voluntarily answers, those responses,

and the officer’s observations, are admissible in a criminal prosecution. (Florida

v. Bostick (1991) 501 U.S. 429, 434 (Bostick); Florida v. Royer (1983) 460 U.S.

491, 497 (Royer) (plur. opn. of White, J.).) Such consensual encounters present no

constitutional concerns and do not require justification. (Bostick, at p. 434.)

However, “when the officer, by means of physical force or show of authority, has

in some way restrained the liberty of a citizen,” the officer effects a seizure of that

person, which must be justified under the Fourth Amendment to the United States

Constitution. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry); accord,

Bostick, at p. 434.) In situations involving a show of authority, a person is seized

“if ‘in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave,’ ” or “ ‘otherwise

terminate the encounter,’ ” (Brendlin v. California (2007) 551 U.S. 249, 254-255

(Brendlin)), and if the person actually submits to the show of authority (id. at p.

254).

The critical question here is when Brown’s detention occurred. If the

encounter with Geasland was consensual, it required no justification. When

Geasland then saw obvious signs of intoxication, a detention to investigate drunk

driving was warranted. But if Geasland effected a detention when he turned on

the emergency lights, he was required to “point to specific articulable facts that,

considered in light of the totality of the circumstances, provide some objective

manifestation that [Brown] may be involved in criminal activity.” (People v.

Souza (1994) 9 Cal.4th 224, 231 (Souza); accord, United States v. Cortez (1981)

449 U.S. 411, 417-418 (Cortez); Terry, supra, 392 U.S. at pp. 17, 20-21.)

4

In reviewing the trial court’s suppression ruling, we defer to its factual

findings if supported by substantial evidence. We independently assess the legal

question of whether the challenged search or seizure satisfies the Fourth

Amendment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)

A. Detention of a Driver in a Stopped Vehicle

Here we consider two questions. One, when an officer approaches a

motorist in a parked car, what differentiates between a consensual encounter and a

detention? Two, what is required to demonstrate submission to a show of

authority?

In People v. Bailey (1985) 176 Cal.App.3d 402 (Bailey) an officer stopped

behind the defendant’s parked car and activated his emergency lights. (Id. at p.

404.) Applying the test from United States v. Mendenhall (1980) 446 U.S. 544,

554 (Mendenhall), the court concluded a detention had occurred because “[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.” (Bailey, at pp. 405-406.)1

The Court of Appeal here faulted Bailey for overlooking a critical point.

Relying on California v. Hodari D. (1991) 499 U.S. 621 (Hodari D.), it held 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,

1 Justice Agliano dissented on the ground the officer’s observations were

unrelated to and independent of his use of emergency lights. (Bailey, supra, 176

Cal.App.3d at pp. 407-408.)

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

you do not yield, police may chase you.” The court reasoned: “[P]olice 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.” Applying Hodari D., the appellate court upheld 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.”

Bailey provides the more persuasive authority. Hodari D. is distinguishable

and inaptly applied here. In Hodari D., a group of youths ran away when they saw

two officers driving in an unmarked police car. The officers gave chase. As he

ran, Hodari tossed away a small rock of crack cocaine. He was subsequently

tackled by an officer. (Hodari D., supra, 499 U.S. at pp. 622-623.) The question

before the Supreme Court was “whether, with respect to a show of authority as

with respect to application of physical force, a seizure occurs even though the

subject does not yield. We hold that it does not.” (Id. at p. 626, italics added.)

The court emphasized that a seizure requires either the use of force or submission

to an assertion of authority. (Id. at pp. 626-627.) No state action directed at

Hodari caused him to flee. Initially the officers had made no attempt to detain

him. They were merely driving down the street when the minor chose to run

away. Nonetheless, the court concluded: “assuming that [the officer’s] pursuit in

the present case constituted a ‘show of authority’ enjoining Hodari to halt, since

Hodari did not comply with that injunction he was not seized until he was

tackled.” (Id. at p. 629, italics added.) Thus, the cocaine, discarded before that

seizure, was not illegally obtained. (Ibid.)

This case is different. Brown did not drive away when Geasland turned on

the emergency lights. Rather, he stayed in his parked car as the officer

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approached. The United States Supreme Court addressed a similar circumstance

in Brendlin, supra, 551 U.S. 249. There, an officer stopped a car in which

Brendlin was a passenger. Drugs were found both in the car and on Brendlin’s

person. (Id. at pp. 252-253 & fn. 2.) The court held that Brendlin was seized

during the traffic stop. (Id. at p. 251.)

The court first addressed the applicable standard: “when an individual’s

submission to a show of governmental authority takes the form of passive

acquiescence, there needs to be some test for telling when a seizure occurs in

response to authority, and when it does not. The test was devised by Justice

Stewart in United States v. Mendenhall, 446 U.S. 544 (1980), who wrote that a

seizure occurs if ‘in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave,’ id., at 554

(principal opinion).” (Brendlin, supra, 551 U.S. at p. 255.) The court

subsequently adopted Justice Stewart’s touchstone. (Ibid., citing Hodari D.,

supra, 499 U.S. at p. 627; Michigan v. Chesternut (1988) 486 U.S. 567, 573

(Chesternut); INS v. Delgado (1984) 466 U.S. 210, 215 (Delgado).) In Bostick,

supra, 501 U.S. 429, the court noted that, in some cases, a person may not wish to

leave the location of a police encounter but may also not wish to speak with, or

otherwise comply with, an officer’s request. In such a circumstance, the “coercive

effect of the encounter” is better measured by asking whether “a reasonable person

would feel free to decline the officers’ requests or otherwise terminate the

encounter.” (Id. at p. 436.)

The Brendlin court concluded that “any reasonable passenger [in Brendlin’s

circumstances] would have understood the police officers to be exercising control

to the point that no one in the car was free to depart without police permission.”

(Brendlin, supra, 551 U.S. at p. 257.) It further held that Brendlin had

demonstrated submission to authority notwithstanding the fact that only the driver

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controlled the moving vehicle. “[W]hat may amount to submission depends on

what a person was doing before the show of authority: a fleeing man [like Hodari

D.] is not seized until he is physically overpowered, but one sitting in a chair may

submit to authority by not getting up to run away. Here, Brendlin had no effective

way to signal submission while the car was still moving on the roadway, but once

it came to a stop he could, and apparently did, submit by staying inside.” (Id. at p.

262.)2

Similarly, here, Brown submitted to the deputy’s show of authority by

staying in his car at the scene. The Court of Appeal effectively expanded

Brendlin’s objective test by requiring that there “needs to be some evidence that

the person yielded.” It failed to explain, however, what additional evidence would

satisfy this expanded standard. The Court of Appeal’s approach is both

impractical and unnecessary. “[W]hen an individual’s submission to a show of

governmental authority takes the form of passive acquiescence,” we simply

consider whether, objectively, “ ‘in view of all of the circumstances surrounding

the incident, a reasonable person would have believed that he was not free to

leave,’ ” or “ ‘otherwise terminate the encounter.’ ” (Brendlin, supra, 551 U.S. at

p. 255, quoting Mendenhall, supra, 446 U.S. at p. 554 and Bostick, supra, 501

U.S. at p. 436.)

2 The People construe this passage as dictum but do not further defend the

characterization. On the contrary, the high court specifically identified the issue as

one of three premises underlying our state court holding with which it disagreed.

(Brendlin, supra, 551 U.S. at p. 259; see People v. Brendlin (2006) 38 Cal.4th

1107, 1118 [holding that “defendant has not shown that he, as the passenger, was

the subject of the deputy’s show of authority or that he actually submitted to it”

(italics added)].) Indeed, the high court’s conclusion that the stop effected a

seizure of Brendlin necessarily depended on a finding that Brendlin submitted to

the show of authority.

8

The People take a different approach to justifying Deputy Geasland’s

conduct. They argue that Geasland’s actions did not amount to a detention until

after he approached Brown’s car on foot and noted symptoms of intoxication. The

argument fails.

The Supreme Court has long recognized that activating sirens or flashing

lights can amount to a show of authority. (Chesternut, supra, 486 U.S. at p. 575.)

Here, Deputy Geasland arrived at the scene with lights and sirens activated.

Brown did not respond to Geasland’s initial inquiry in the alley. After checking

the scene, Geasland drove after Brown. He stopped behind Brown’s legally

parked car and turned on his emergency lights. Under these circumstances, a

reasonable person in Brown’s position would have perceived Geasland’s actions

as a show of authority, directed at him and requiring that he submit by remaining

where he was. As a sister-state court has observed: “We see little difference,

from the perspective of the occupants in the vehicle, [between] turning on the blue

lights behind a moving vehicle and turning on the blue lights behind a parked

vehicle. The lights still convey the message that the occupants are not free to

leave.” (State v. Gonzalez (Tenn.Ct.App. 2000) 52 S.W.3d 90, 97; accord, Smith

v. State (Fla.Ct.App. 2012) 87 So.3d 84, 87-88 [officer detained defendant by

parking adjacent to defendant’s lawfully parked vehicle and activating his

emergency lights and spotlight]; State v. Morris (Kan. 2003) 72 P.3d 570, 573-

574, 577-579 [officer detained defendant by activating emergency lights and

spotlights behind defendant’s truck parked off the freeway].)

The People counter that the record fails to establish whether Deputy

Geasland activated “ ‘emergency lights,’ ‘overhead lights,’ red and blue flashing

lights, solid lights, amber lights, white lights, or spotlights.” Urging that this is an

important, if not dispositive, factor, they claim that the ambiguity in the record

must be construed in favor of the trial court’s order denying the suppression

9

motion. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) They fail to

persuade.

Geasland testified that he “activated [his] lights.” When the trial court

sought clarification on that point, the deputy confirmed that his actions were

consistent with having made a traffic stop. The most logical inference to be drawn

from this testimony is that Geasland turned on his overhead emergency lights,

which included a combination of red and blue lights.3 The district attorney offered

no dispute and the trial court made no findings to the contrary. In their briefing

before the Court of Appeal, the People again failed to challenge the point, and the

Court of Appeal wrote that the deputy had activated “the patrol car’s overhead

emergency lights.” The People did not petition for rehearing. (See Cal. Rules of

Court, rule 8.500(c).) On the contrary, they sought publication of the originally

unpublished opinion because it expressly disagreed with the holding in Bailey,

supra, 176 Cal.App.3d at pages 405-406, that a detention occurs when an officer

activates his emergency lights. When Brown petitioned for review, the People did

not file an answer challenging the factual record. Accordingly, we accept the

Court of Appeal’s statement that the deputy activated his overhead emergency

lights. (See People v. Nelson (2008) 43 Cal.4th 1242, 1247.)

The People argue that, because Brown had voluntarily stopped his car

before the deputy’s display of authority, the appropriate inquiry is whether “ ‘a

reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encounter.’ ” (Brendlin, supra, 551 U.S. at p. 255, quoting Bostick,

3 See Vehicle Code, sections 25252 (“Every authorized emergency vehicle

shall be equipped with at least one steady burning red warning lamp . . . .”),

25258, subdivision (b) (“An authorized emergency vehicle used by a peace officer

. . . may, in addition, display a steady or flashing blue warning light . . . .”).

10

supra, 501 U.S. at pp. 435-436, italics added.) According to the People, the

encounter did not begin until the deputy walked up to Brown’s car. Not so.

The People’s argument does not acknowledge the evolution of the high

court’s test. The simple “not free to leave” test was first articulated in

Mendenhall, supra, 446 U.S. at page 554. The test was augmented in Bostick to

encompass a situation in which a person might not want or be able to leave his

location because of circumstances “independent of police conduct,” but had no

desire to interact with officers. (Bostick, supra, 501 U.S. at p. 436.) In Bostick,

police officers boarded a bus and asked to see the defendant’s identification and

ticket, then asked to search his luggage. (Id. at pp. 431-432.) Bostick argued that

a reasonable person in his position would not have felt “free to leave” the bus

because, if it left, he would have been stranded without his bag. (Id. at p. 435.)

The Supreme Court rejected this argument: “Bostick’s freedom of movement was

restricted by a factor independent of police conduct—i. e., by his being a

passenger on a bus. Accordingly, the ‘free to leave’ analysis on which Bostick

relies is inapplicable. In such a situation, the appropriate inquiry is whether a

reasonable person would feel free to decline the officers’ requests or otherwise

terminate the encounter.” (Id. at p. 436.)

The circumstances here are more similar to Brendlin and Mendenhall than

to Bostick. Acting on his own, Brown had stopped his car temporarily on the side

of the road. Nothing, other than the officer’s show of authority, prevented his

willful departure. He remained in the driver’s seat with his foot on the brake.

There was no evidence that Brown’s car was disabled. He had been driving it

minutes before, despite his intoxication. Brown could also have left on foot,

leaving his car legally parked. The high court in Brendlin found it appropriate to

consider whether a reasonable passenger in a stopped car would have felt free to

“depart without police permission.” (Brendlin, supra, 551 U.S. at p. 257, italics

11

added; see also ibid. [a passenger’s “attempt to leave the scene would be so

obviously likely to prompt an objection from the officer that no passenger would

feel free to leave in the first place”].) As a result, our analysis here focuses on

whether a reasonable person in Brown’s position would have felt free to leave.

Finally, the People argue that “[t]here is no indication that [Brown] was

even aware of the officer’s presence until after the officer approached [Brown]’s

car on foot.” They maintain that “[t]here must be some additional law

enforcement action that directs the officer’s actions toward that individual—such

as issuing oral commands or questions toward that person or, as here, approaching

the car on foot and making contact with the person—before a reasonable person

would become aware he or she was engaged in an encounter with the police.” The

argument is not supported by substantial evidence. Geasland did not testify that

Brown was unconscious, probing under the seat, or otherwise distracted. The

reasonable inference to be drawn from the record was that Brown was aware of the

deputy’s overhead emergency lights flashing in the dark immediately behind his

car.

To be clear, we do not adopt a bright-line rule that an officer’s use of

emergency lights in close proximity to a parked car will always constitute a

detention of the occupants. “[A]ny assessment as to whether police conduct

amounts to a seizure implicating the Fourth Amendment must take into account

‘ “all of the circumstances surrounding the incident” ’ in each individual case.”

(Chesternut, supra, 486 U.S. at p. 572, quoting Delgado, supra, 466 U.S. at p.

215.) As an example, a motorist whose car had broken down on the highway

might reasonably perceive an officer’s use of emergency lights as signaling that

the officer has stopped to render aid or to warn oncoming traffic of a hazard, rather

than to investigate crime. Ambiguous circumstances may be clarified by whether

other cars are nearby or by the officer’s conduct when approaching. (See Wilson

12

v. Superior Court (1983) 34 Cal.3d 777, 791 & fn. 11; People v. Garry (2007) 156

Cal.App.4th 1100, 1110-1112.) Here, no circumstances would have conveyed to a

reasonable person that Deputy Geasland was doing anything other than effecting a

detention. Under the totality of these circumstances, Brown was detained when

Geasland stopped behind the parked car and turned on his emergency lights.

B. Reasonable Suspicion to Detain

The next question is whether the detention was supported by reasonable

suspicion. The circumstances here include a reliable citizen’s report of a violent

fight potentially involving a firearm, the deputy’s very quick response time, and

Brown’s presence near the scene of the fight in the otherwise vacant alley. These

facts justified this brief detention.

The Supreme Court recently summarized the governing principles: “The

Fourth Amendment permits brief investigative stops . . . when a law enforcement

officer has ‘a particularized and objective basis for suspecting the particular

person stopped of criminal activity.’ United States v. Cortez, 449 U.S. 411, 417-

418 (1981); see also Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The ‘reasonable

suspicion’ necessary to justify such a stop ‘is dependent upon both the content of

information possessed by police and its degree of reliability[,]’ Alabama v. White,

496 U.S. 325, 330 (1990) . . . . tak[ing] into account ‘the totality of the

circumstances . . . .’ Cortez, supra, at 417. Although a mere ‘ “hunch” ’ does not

create reasonable suspicion, Terry, supra, at 27, the level of suspicion the standard

requires is ‘considerably less than proof of wrongdoing by a preponderance of the

evidence,’ and ‘obviously less’ than is necessary for probable cause, United States

v. Sokolow, 490 U.S. 1, 7 (1989).” (Navarette v. California (2014) __ U.S. __

[134 S.Ct. 1683, 1687] (Navarette); accord, Souza, supra, 9 Cal.4th at pp. 229-

231.) “[W]here a reasonable suspicion of criminal activity exists, ‘the public

rightfully expects a police officer to inquire into such circumstances “in the proper

13

exercise of the officer’s duties.” ’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083

(Wells), quoting In re Tony C. (1978) 21 Cal.3d 888, 894.)

Navarette found an anonymous motorist’s 911 call sufficiently reliable to

support the traffic stop of a pickup truck on suspicion of drunk driving.

(Navarette, supra, __ U.S. at p. __ [134 S.Ct. at pp. 1688-1690].) Considering the

factors outlined in that case, we reach a similar conclusion here.

First, a caller’s personal knowledge “lends significant support to the tip’s

reliability.” (Navarette, supra, __ U.S. at p. __ [134 S.Ct. at p. 1689]; accord,

People v. Dolly (2007) 40 Cal.4th 458, 467 (Dolly); Wells, supra, 38 Cal.4th at p.

1087.) The caller here reported he was witnessing a fight in the alley outside of

his home. He said at least four people, who lived two doors away from him, were

involved. He heard one person claim to have a loaded gun.

Second, the caller’s report was contemporaneous, a factor that “has long

been treated as especially reliable.” (Navarette, supra, __ U.S. at p. __ [134 S.Ct.

at p. 1689]; accord, Dolly, supra, 40 Cal.4th at p. 467; Wells, supra, 38 Cal.4th at

p. 1087.) Indeed, the dispatcher confirmed she could hear people screaming in the

background of the call, further corroborating the caller’s account. The caller also

told the dispatcher that he could hear the siren and see the lights of the responding

patrol car.

“Another indicator of veracity is the caller’s use of the 911 emergency

system,” which “has some features that allow for identifying and tracing callers,

and thus provide[s] some safeguards against making false reports with immunity.”

(Navarette, supra, __ U.S. at p. __ [134 S.Ct. at p. 1689]; accord, Dolly, supra, 40

Cal.4th at p. 467.) This 911 call was recorded, and the caller confirmed his

address with the dispatcher. (Navarette, at p. __ [134 S.Ct. at p. 1690]; Dolly, at p.

467 & fn. 2.)

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Finally, as this court has observed, private citizens who report criminal

activity generally have no bias or motive other than good citizenship, and

therefore tend to be reliable. (People v. Ramey (1976) 16 Cal.3d 263, 268-269;

People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504; see Illinois v. Gates

(1983) 462 U.S. 213, 233-234.)

Brown relies on Florida v. J. L. (2000) 529 U.S. 266, but that case is

distinguishable. The high court in J. L. held that police lacked reasonable

suspicion to detain and frisk the defendant based on an anonymous telephone tip

claiming a young Black man in a plaid shirt standing at a particular bus stop was

carrying a gun. (Id. at pp. 272-274.) The court stated that “[a]ll the police had to

go on in this case was the bare report of an unknown, unaccountable informant

who neither explained how he knew about the gun nor supplied any basis for

believing he had inside information about J. L.” (Id. at p. 271.) Navarette

recently distinguished J. L. on the ground that the caller in Navarette provided

more than a “bare-bones tip.” (Navarette, supra, __ U.S. at p. __ [134 S.Ct. at p.

1692].) J. L. is likewise distinguishable here. This caller’s eyewitness knowledge,

contemporaneous reporting, use of the 911 system, and confirmation of his

address provided additional indicia of reliability. Further, although the caller did

not personally observe an assault with a firearm (cf. Dolly, supra, 40 Cal.4th at p.

465), he did hear one of the people involved claim to have a loaded gun. In the

context of a fight in progress, such a claim suggests a credible threat. The caller’s

contemporaneous report of this declaration was more reliable than the amorphous

circumstances in J. L.

Brown further argues that the caller’s reliability must be assessed based on

the facts known to Deputy Geasland, not the 911 dispatcher, and that Geasland

was unaware of the circumstances under which the call was placed. The argument

is unpersuasive. An officer may arrest or detain a suspect “based on information

15

received through ‘official channels.’ ” (People v. Madden (1970) 2 Cal.3d 1017,

1021; see United States v. Hensley (1985) 469 U.S. 221, 230-233 (Hensley).) If a

911 call “has sufficient indicia of reliability . . . a dispatcher may alert other

officers by radio, who may then rely on the report, [citation], even though they

cannot vouch for it.” (U.S. v. Cutchin (D.C. Cir. 1992) 956 F.2d 1216, 1217-1218;

accord, U.S. v. Torres (3d Cir. 2008) 534 F.3d 207, 210.) However, upon proper

objection (People v. Rogers (1978) 21 Cal.3d 542, 547-548), “ ‘ “the People must

prove that the source of the information is something other than the imagination of

the officer who does not become a witness.” ’ ” (Madden, at p. 1021, quoting

Remers v. Superior Court (1970) 2 Cal.3d 659, 666; accord, People v. Harvey

(1958) 156 Cal.App.2d 516, 523-524 (conc. opn. of Dooling & Draper, JJ.).) This

requirement can be met by calling the police dispatcher as a witness at the

suppression hearing or by introducing a recording of the 911 call. (In re Richard

G. (2009) 173 Cal.App.4th 1252, 1260; People v. Orozco (1981) 114 Cal.App.3d

435, 444.) Here, the dispatcher was present at the hearing but was not called

because Brown stipulated to admission of the 911 recording into evidence. That

recording provided ample basis to review the caller’s reliability. (Dolly, supra, 40

Cal.4th at p. 467, fn. 2; People v. Lazanis (1989) 209 Cal.App.3d 49, 57.)4

4 Brown further argues that it is improper to impute the 911 dispatcher’s

knowledge of the circumstances of the call to Deputy Geasland because the

imputed knowledge doctrine applies only to other law enforcement officials, and

“[a] civilian 911 operator” does not meet that criteria. He relies on U.S. v. Colon

(2d Cir. 2001) 250 F.3d 130, 136-137. We need not decide if Colon is persuasive

authority because Brown forfeited this argument by failing to object on that basis

in the trial court. His lack of objection and stipulation to admission of the

recording gave the People no reason to address such an argument or present

additional evidence below. (Dolly, supra, 40 Cal.4th at p. 466, fn. 1.)

16

As in Navarette, supra, __ U.S. at page __ [134 S.Ct. at pp. 1688-1690],

this 911 caller demonstrated adequate indicia of reliability to credit his account of

a violent fight in progress involving several people and possibly a loaded gun in

the alley behind the caller’s residence.

The next question is whether the deputy could reasonably suspect Brown

had been involved in the fight. (Michigan v. Summers (1981) 452 U.S. 692, 699-

700; Cortez, supra, 449 U.S. at pp. 417-418; Terry, supra, 392 U.S. at pp. 16-19.)

The absence of any suspect descriptions makes this a close question. Nonetheless,

we conclude that the totality of the circumstances justified Brown’s very brief

detention.

The reasonableness of a detention involves both questions of fact and

policy. Under Terry, we must balance “ ‘the need to search [or seize] against the

invasion which the search [or seizure] entails.’ ” (Terry, supra, 392 U.S. at p. 21;

accord, Glaser, supra, 11 Cal.4th at p. 363.) Police officers are required to make

“swift, on-the-spot decisions” and the Fourth Amendment does not require us to

“ ‘indulge in “unrealistic second-guessing” ’ ” of the officer’s conduct. (United

States v. Sokolow (1989) 490 U.S. 1, 11 (Sokolow).)

The reported crime was serious. It involved a violent fight between at least

four people, one of whom claimed to have a loaded gun. Geasland arrived at the

scene within three minutes of being dispatched and while the caller remained on

the line. (See Dolly, supra, 40 Cal.4th at p. 468.) Brown was driving away from

the location of the fight and was the only person in sight in the residential alley

just after 10:30 p.m. The very recent report of a crime in progress, Brown’s close

proximity to the crime scene, and the lack of other vehicle or pedestrian traffic in

the residential alley are all significant factors. (See, e.g., People v. Conway (1994)

17

25 Cal.App.4th 385, 387-388, 390; People v. Lloyd (1992) 4 Cal.App.4th 724,

733-734.)5

Deputy Geasland also attributed significance to the fact that Brown ignored

the deputy’s attempt to question him about the fight and continued driving away

from the scene. The deputy recounted that Brown drove directly past his marked

patrol car in the “kind of tight” alley. Geasland rolled down his window and

“yelled out” to defendant, “Hey. Did you see a fight?” Brown neither responded

5 That the fight had ended does not affect the analysis in this case. In

Hensley, supra, 469 U.S. 221, the court upheld a defendant’s detention 12 days

after an armed robbery on the basis of a “ ‘wanted flyer.’ ” (Id. at p. 223.) In

deciding whether reasonable suspicion could justify a detention for a “completed

crime” (id. at p. 227), the court acknowledged that “[a] stop to investigate an

already completed crime does not necessarily promote the interest of crime

prevention” and that “the exigent circumstances which require a police officer to

step in before a crime is committed or completed are not necessarily as pressing

long afterwards. Public safety may be less threatened by a suspect in a past crime

who now appears to be going about his lawful business than it is by a suspect who

is currently in the process of violating the law.” (Id. at p. 228.) The court also

observed that “officers making a stop to investigate past crimes may have a wider

range of opportunity to choose the time and circumstances of the stop.” (Id. at pp.

228-229.) Nonetheless, the court concluded that “[i]t is enough . . . if police have

a reasonable suspicion, grounded in specific and articulable facts, that a person

they encounter was involved in or is wanted in connection with a completed felony

. . . .” (Id. at p. 229, italics added.) This crime was not “completed” in the sense

that Hensley contemplated. The fight had ended only a minute or two before

Geasland’s arrival, Brown was very near the scene, he was possibly armed, and

there was not a “wide[] range of opportunity to choose the time and circumstances

of the stop.” (Id. at pp. 228-229; cf. Dolly, supra, 40 Cal.4th at p. 466; see also 4

LaFave, Search and Seizure (5th ed. 2012) § 9.2(a), pp. 373-374.)

Brown argues that the crime involved here was a misdemeanor. We need

not decide if his characterization is accurate, or under what circumstances, if any,

the holding in Hensley extends to misdemeanor offenses. (Compare U.S. v. Grigg

(9th Cir. 2007) 498 F.3d 1070, 1081, and U.S. v. Moran (10th Cir. 2007) 503 F.3d

1135, 1141 & fn. 4, with Gaddis v. Redford Township (6th Cir. 2004) 364 F.3d

763, 771, fn. 6.)

18

nor acknowledged the question. Geasland testified: “[w]hen he didn’t answer me,

acknowledge me, or anything like that, I had a feeling he was involved.” The trial

court did not rely on this circumstance, and neither do we. Geasland

acknowledged that Brown may have simply failed to hear him and the trial court

ultimately made no factual finding on that issue. Moreover, even if Brown

ignored the deputy, a “ ‘refusal to cooperate [with law enforcement], without

more, does not furnish the minimal level of objective justification needed for a

detention or seizure.’ ” (Illinois v. Wardlow (2000) 528 U.S. 119, 125 (Wardlow);

accord Bostick, supra, 501 U.S. at p. 437; Royer, supra, 460 U.S. at p. 498.)

Notably, Geasland did not describe any behavior by Brown as they passed in the

alley that could be construed as nervous or evasive. (Cf. United States v. Arvizu

(2002) 534 U.S. 266, 270-271, 276-277 (Arvizu) [giving some weight to the fact

that the defendant’s car slowed dramatically as he approached the officer; he

stiffened and appeared to pretend the officer was not there, even though most

drivers in that area “gave border patrol agents a friendly wave”; shortly thereafter,

all of the children in the car put their hands up and began to waive mechanically at

the officer “as if instructed to do so”].)

Nonetheless, the fact that Brown drove away without responding left

Geasland with no alternative short of a detention to identify him and determine if

he had been involved in the fight. Notably, when Geasland turned around to

follow Brown’s car, he found it parked on Georgia Street only a few houses down

from the house behind which the fight had occurred. Brown’s decision to drive

back towards the residence, along with the report of a possible weapon, provided

an objective reason to suspect that he might present an ongoing danger to the

19

occupants of the house and the deputies who had responded to investigate. (Dolly,

supra, 40 Cal.4th at p. 466.)6

Brown emphasizes that his conduct was consistent with lawful activity.

However, “ ‘[t]he possibility of an innocent explanation does not deprive the

officer of the capacity to entertain a reasonable suspicion of criminal conduct.’ ”

(Souza, supra, 9 Cal.4th at p. 233, quoting In re Tony C., supra, 21 Cal.3d at

p. 894; accord Arvizu, supra, 534 U.S. at p. 274; Wardlow, supra, 528 U.S. at

p. 125; Sokolow, supra, 490 U.S. at p. 9.) “What is required is not the absence of

innocent explanation, but the existence of ‘specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that

intrusion.’ ” (Glaser, supra, 11 Cal.4th at p. 373.) Although each of a series of

acts may be “ ‘perhaps innocent in itself,’ ” taken together, they may “ ‘warrant[]

further investigation.’ ” (Arvizu, at p. 274, quoting Terry, supra, 392 U.S. at

p. 22.) The purpose of the detention is to resolve the ambiguity by allowing the

officer to briefly investigate further. (Souza, at p. 233; Wardlow, at p. 125.)

Moreover, it is significant that the detention preceding Geasland’s

observations was exceptionally brief and nonintrusive. (Hensley, supra, 469 U.S.

at p. 235 [examining, under Terry, both “the length and intrusiveness of the stop

and detention”].) As noted in Glaser, supra, 11 Cal.4th at page 367, a detention’s

“brevity weighs heavily in favor of a finding of reasonableness.” Geasland merely

stopped his cruiser, flashed his emergency lights, and walked toward Brown’s car.

When he was close enough to speak, he noticed several signs of Brown’s

6 Although Geasland did not specifically mention this factor in his testimony,

we look to the objective facts known to the deputy to determine whether the stop

was reasonable under the circumstances. (Brigham City v. Stuart (2006) 547 U.S.

398, 404; People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 (Letner).)

20

intoxication. Routine traffic detentions are considerably less intrusive than a

search (Wells, supra, 38 Cal.4th at p. 1087), and here Brown had already stopped

his car on his own. The deputy did not issue commands over a loudspeaker, draw

a weapon, order Brown to step out of the car, or subject him to a pat-down search.

But for the use of the emergency lights, the encounter would have been

consensual.

An officer “who lacks the precise level of information necessary for

probable cause to arrest” is not constitutionally required to “simply shrug his

shoulders and allow a crime to occur or a criminal to escape. On the contrary,

Terry recognizes that it may be the essence of good police work to adopt an

intermediate response. [Citation.] A brief stop of a suspicious individual, in order

to determine his identity or to maintain the status quo momentarily while obtaining

more information, may be most reasonable in light of the facts known to the

officer at the time.” (Adams v. Williams (1972) 407 U.S. 143, 145-146; accord,

Letner, supra, 50 Cal.4th at p. 149.)

Here, a citizen living in a residential neighborhood made an emergency call

seeking police assistance because a fight was happening in an alley behind the

citizen’s home. The caller gave a specific address. The caller heard screaming

and a reference to a loaded gun. The dispatcher heard screaming as well. The

caller confirmed the fight was occurring as they spoke and remained on the line to

narrate events.

Within three minutes of dispatch Deputy Geasland arrived with lights and

siren activated. Brown, the only person in the alley, was driving a car away from

the reported location of the fight. It was after 10:30 p.m. Brown left the alley but

drove back toward the scene on the main street. Under these circumstances, it was

reasonable for Geasland to suspect the sole occupant of the alley may have been

involved in the fight and to effectuate a brief and minimally intrusive detention,

21

which immediately yielded observations of criminal activity. The citizen who

called for his help would surely hope the officer would do more to secure the

safety of his neighborhood than shrug and drive away. (Adams v. Williams, supra,

407 U.S. at pp. 145-146; Wells, supra, 38 Cal.4th at p. 1083.)

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

22

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Brown

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 226 Cal.App.4th 142

Rehearing Granted

__________________________________________________________________________________

Opinion No. S218993

Date Filed: August 6, 2015

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Ana L. España and Theodore M. Weathers

__________________________________________________________________________________

Counsel:

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

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

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Steven T.

Oetting, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General, Doris A. Calandra,

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

Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert L. Ford

Deputy Public Defender

450 B Street, Suite 1100

San Diego, CA 92101

(619) 338-4831

Donald W. Ostertag

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-3160