P. v. Hanks 11/6/01 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F035120

Case Date: 03/14/2002

Preview:Filed 11/14/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F035120 Plaintiff and Respondent, (Super. Ct. No. 78556) v. MICHAEL ANTHONY HANKS, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge. Sharon Felming, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert P. Anderson, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Michael Anthony Hanks (Hanks) appeals his conviction for possessing a gun. Prior to being convicted, his motion to suppress was denied. Hanks's appeal attacks the ruling on the motion to suppress as well as several other rulings. As we conclude that the trial court erred in denying the motion to suppress, and the error requires reversal, we do not reach Hanks's additional arguments.1 DISCUSSION Leon Anderson (Anderson), Dontee Tyree Hester (Hester), and Hanks (collectively defendants) were in a Chevrolet stopped by Bakersfield Police Officers Gary Carruesco and Martin Heredia in the early morning hours of August 7, 1999. Hanks was driving the Chevrolet. A gun was found in the car and all of the occupants were arrested and charged with conspiracy to possess a handgun by gang members. The defendants moved to suppress the gun and to dismiss the indictment arguing that Carruesco and Heredia did not have probable cause to stop the vehicle and there was no evidence of a conspiracy. The trial court denied both motions. Hanks waived his right to a jury trial and submitted the matter to the court based on the transcripts of the grand jury proceedings, motion to suppress, and motion to dismiss. The court found him guilty. I. The Suppression Motion Hanks complains that Carruesco and Heredia did not have sufficient cause to justify the initial detention of the Chevrolet, and accordingly, any evidence obtained as a result of the stop should have been suppressed. The People argue there was probable cause to stop the vehicle.

1

We present the facts in the portion of this opinion addressing the suppression motion since all relevant facts pertain to that motion.

2.

The rules for review of denial of a motion to suppress are well established. This court reviews the explicit and implicit factual findings to determine if they are supported by substantial evidence. (People v. Soun (1995) 34 Cal.App.4th 1499, 1507.) We then exercise our independent judgment to determine if the facts found by the trial court establish a seizure in violation of the Fourth Amendment. (Ibid.) Moreover, the rules applicable to search and seizure also are easily stated, if not easily applied. A seizure within the meaning of the Fourth Amendment occurs whenever an individual's liberty is restrained by the police either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave. (People v. Soun, supra, 34 Cal.App.4th at p. 1515.) Distinctions are drawn between "detentions" and "arrests," since, although both are seizures under the Fourth Amendment, the constitutional standard for permissible detentions "is of lesser degree than that applicable to an arrest." (People v. Harris (1975) 15 Cal.3d 384, 389.) A detention may be undertaken "if there is an articulable suspicion that a person has committed or is about to commit a crime" (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784), while probable cause for an arrest exists only "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410.) We here are concerned with the initial detention of the Chevrolet in which the defendants were traveling. Temporary detention of individuals during the stop of an automobile by the police constitutes a detention under the Fourth Amendment. (Whren v. U.S. (1996) 517 U.S. 806, 809-810.) The reasonableness of official suspicion is measured by what the officers knew before they acted. (Florida v. J.L. (2000) 529 U.S. 266, 271.) Our review of the facts found by the trial court is relatively straightforward since there is virtually no dispute as to what occurred on the night in question. Heredia and 3.

Carruesco were on patrol on the night of August 6, and early morning of August 7, 1999, in an area of Bakersfield which the officers considered to be the territory of the criminal street gang East Side Crips. Heredia and Carruesco knew that earlier that evening a drive-by shooting had occurred at Casa Loma Park. Two people were killed in that shooting and at least two others were wounded. Some of the victims were members of the criminal street gang Country Boy Crips, a rival to the East Side Crips. Heredia and Carruesco also were aware the East Side Crips were suspected of being responsible for the shooting. At approximately 12:30 a.m., Heredia and Carruesco observed three vehicles, a Chevrolet, Chrysler and Mazda, driving side-by-side on a three-lane road. The officers followed the vehicles and tried to determine who and how many people occupied the vehicles using the spotlights on their patrol vehicle. They determined that four Black males between 15 and 25 years of age occupied the Chevrolet, and one of these individuals was Leon Anderson, a person they knew to be a member of the East Side Crips. They also determined that four individuals occupied the Chrysler and that two were Black males of the same age. They could not identify the sex or race of the two rear passengers in the Chrysler. The officers did not observe the number, race or sex of the occupants in the Mazda. The officers could not identify anyone other than Anderson. After following the three vehicles for approximately one-quarter mile, and making the observations described above, Carruesco and Heredia activated the emergency lights on their patrol vehicle and stopped the Chevrolet. Carruesco explained his justification for the stop of the Chevrolet: "Based on the occupants of the vehicle being all black males and the recognition of Mr. Anderson as an East Side Crip, it has been my experience that gang members oftentimes hang out together in large groups because they have strength in numbers and [are] more intimidating in a larger group. [

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