PROBABLE CAUSE

“The requirement of probable cause has roots that are deep in our history.” 1

One of the most weighty decisions that officers must make on a regular basis is whether they have probable cause. It’s serious business because the existence of probable cause gives officers the legal authority to exercise what is unquestionably the most intrusive of police powers. Just consider some of the things officers can do when they have probable cause: Warrantless arrest: Officers can place a person under arrest, an act that is awesome in its ability to instantly strip from a person every vestige of personal freedom. Warrant arrest: They may forcibly enter the person’s house, conduct a search for him, and take him into custody. Search warrant: Officers may forcibly enter a person’s home, take complete control over the premises and everyone inside, then conduct an extensive search of each room. Each of these actions constitutes a dramatic exercise of police power and, to most people, would be a nightmarish experience. It might, therefore, be assumed that there must be some way for officers to determine with near-precision whether probable cause exists. Not by a long shot. In fact, when discussing probable cause and reasonable suspicion the courts are apt to say things like, “there is no exact formula” or it’s a “fluid concept” or “elusive concept.”2 Or they may try to explain probable cause by resorting to the old standby, “If the smoke is heavy enough, the deduction of a fire becomes reasonable.”3 This does not mean that probable cause is some legal brain twister that must be determined by resorting to guesswork, instinct, and occasionally a little luck. On the contrary, because the courts are routinely called upon to make probable cause determinations, their written opinions provide a wealth of information on how to determine whether probable cause exists. These opinions not only provide us with the basic principles that are applied, but also guidance as to the significance of specific recurring facts and combinations of facts. Although probable cause remains fundamentally a judgment call, officers who have a good working knowledge of the subject will be able to make an informed judgment—which is all that can be expected.

AN OVERVIEW In this article we will be covering both probable cause to arrest and probable cause to search. We will also explore the closely-related subject of “reasonable

1 Henry v. United States (1959) 361 US 98, 100. 2 See United States v. Sokolow (1989) 490 US 1, 7; Illinois v. Gates (1983) 462 US 213, 232; United States v. Cortez (1981) 449 US 411, 417; People v. Anthony (1970) 7 Cal.App.3d 751, 762; People v. Torralva (1971) 17 Cal.App.3d 686, 690. 3 See People v. Hirsch (1977) 71 Cal.App.3d 987, 991, fn.1.

1 suspicion,” which is the level of proof needed to detain a suspect or make a car stop. Although these concepts will be examined in detail, we’ll start with the basics.

Probable Cause to Arrest v. Reasonable Suspicion Probable cause and reasonable suspicion are both levels of suspicion that were created by the courts to prevent officers from hastily or arbitrarily interfering with people’s freedom. Both represent an accommodation between the needs of officers to solve crimes and apprehend criminals, and the right of citizens to be left alone.4 Probable cause and reasonable suspicion are, in the words of the United States Supreme Court, “the best compromise that has been found for accommodating these often opposing interests.”5 The main difference between the two is their role in criminal investigations. Reasonable suspicion is the level of proof necessary for a temporary detention, while probable cause is the level of suspicion that is required to make an arrest. Because an arrest is much more intrusive than a detention, the facts that are necessary to establish probable cause must have more convincing force than the facts needed for reasonable suspicion. As the U.S. Supreme Court explained: Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.6

Probable Cause to Arrest v. Probable Cause to Search Although probable cause to arrest and search are governed by the same basic principles,7 their focus is different. Probable cause to arrest is concerned with just

4 See Brinegar v. United States (1949) 338 US 160, 176; Gerstein v. Pugh (1975) 420 US 103, 112; Beck v. Ohio (1964) 379 US 89, 91. NOTE: The U.S. Supreme Court has applied Gates’ probable- cause principles in determining reasonable suspicion to detain. See Alabama v. White (1990) 496 US 325, 328-9; United States v. Sokolow (1989) 490 US 1, 7. 5 See Brinegar v. United States (1949) 338 US 160, 176. 6 Alabama v. White (1990) 496 US 325, 330. ALSO SEE People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609, 615; People v. Superior Court (Meyer) ( 1981) 118 Cal.App.3d 579, 584 [“(T)he strength of the information an officer should have to detain for questioning is much less than it would be for an arrest.”]; Dawkins v. Los Angeles (1978) 22 Cal.3d 126, 133; In re Tony C. (1978) 21 Cal.3d 888, 892; People v. Craig (1978) 86 Cal.App.3d 905, 911; People v. Fields (1984) 159 Cal.App.3d 555, 563. 7 See 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.1(a), pp. 6 [“It is generally assumed by the Supreme Court and the lower courts that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search.”]; Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 111; People v. Rosales (1987) 192 Cal.App.3d 759, 767-8; Greene v. Reeves (6th Cir. 1996) 80 F.3d 1101, 1106. NOTE: It appears the “fair probability” standard may require somewhat less proof than either “reasonable belief” or “strong suspicion.” See Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 936; 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.1(a), pp. 6 [“By like token, Illinois v. Gates,

2 one thing: facts that point to a certain suspect’s guilt. If there are enough of them, probable cause to arrest exists. Probable cause to search, on the other hand, is concerned with whether it is reasonable to believe that evidence of a crime is now located at a certain place.8 In many cases, having probable cause to search will automatically provide probable cause to arrest. For example, probable cause to believe there are drugs in a package being carried by suspect is also probable cause to arrest the suspect for possession of drugs.9 But probable cause to arrest does not always establish probable cause to search. This is because, in addition to the facts establishing the suspect’s guilt, there must be reason to believe that evidence of the crime is now located in the place to be searched. As the U.S. Supreme Court explained: The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that specific things to be searched for and seized are located on the property to which entry is sought.10 This is not to say there is no overlap between probable cause to arrest and search. In many cases, probable cause to arrest a suspect may provide probable cause to search his home or car. Conversely, probable cause to search a suspect’s home for, say, drugs or a murder weapon may provide probable cause to arrest. Also note that probable cause to search a home or business may exist even though there is no evidence whatsoever that the person who owns or controls the place committed a crime.11 For example, warrants routinely authorize a search of a suspect’s bank and telephone records even though the bank and phone company are not suspected of any crime. Not so routine, but still permissible, are warrants to search the home of a suspect’s friend or relative, even though there is no evidence linking the occupants of the house to criminal activity. For example, in People v. Fernandez12 narcotics officers were conducting surveillance on Cardona, a suspected drug dealer. As they followed him around they saw him engage in countersurveillance driving while wheeling and dealing on his cell phone and pager. They also saw him slip two envelopes under the door of an apartment occupied by Fernandez. The officers subsequently obtained a warrant to search Fernandez’s apartment. The warrant netted 934 grams of cocaine.

which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well.” Citations omitted]. 8 See Illinois v. Gates (1983) 462 US 213, 230; People v. Gibson (2001) 90 Cal.App.4th 371, 380; U.S. v. Feliz (1st Cir. 1999) 182 F.3d 82, 86 [“A warrant application must demonstrate probable cause to believe that (1) a crime has been committed—the ‘commission’ element, and (2) enumerated evidence of the offense will be found at the place to be searched—the so-called ‘nexus’ element.”]. 9 See People v. Gorrostieta (1993) 19 Cal.App.4th 71, 84; People v. Banks (1990) 217 Cal.App.3d 1358, 1364; People v. Balassy (1973) 30 Cal.App.3d 614, 622. 10 Zurcher v. Stanford Daily (1978) 436 US 547, 556. ALSO SEE People v. Gonzalez (1990) 51 Cal.3d 1179, 1206 [“Mere evidence of a suspect’s guilt provides no cause to search his residence.”]. 11 See Zurcher v. Stanford Daily (1978) 436 US 547, 559. 12 (1989) 212 Cal.App.3d 984.

3 Fernandez claimed there was no probable cause to search his house because the officers had no reason to believe he was a drug user or seller, or was even aware of the contents of the envelopes. The court responded that such an argument displays a misunderstanding of the difference between probable cause to search and probable cause to arrest. Said the court, “Valid warrants may be issued to search any property, whether or not occupied by [an innocent] party.”

Definitions The following are the most commonly-cited definitions of probable cause and reasonable suspicion. REASONABLE SUSPICION: Reasonable suspicion to detain a suspect exists if officers were aware of specific facts that reasonably indicated the person was in the process of committing a crime; had just committed a crime; was about to commit a crime; or was wanted for a completed crime.13 PROBABLE CAUSE TO ARREST: Although some courts continue to cite the old definition which requires an “honest and strong suspicion,” 14 the trend is toward incorporating the new “fair probability” standard; i.e., probable cause to arrest exists there is a “fair probability” that the suspect committed a crime.15

13 See United States v. Cortez (1981) 449 US 411, 417-8; Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 577 [“(T)he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”]; Delaware v. Prouse (1979) 440 US 648, 663; United States v. Hensley (1985) 469 US 221, 229; Whren v. United States (1996) 517 US 806, 810 [“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”]; In re Tony C. (1978) 21 Cal.3d 888, 893; People v. Conway (1990) 222 Cal.App.3d 806, 812; People v. Butler (1988) 202 Cal.App.3d 602, 606-7; People v. Conway (1994) 25 Cal.App.4th 385, 389; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200; People v. Ramirez (1996) 41 Cal.App.4th 1608, 1613; People v. Long (1987) 189 Cal.App.3d 77, 83; People v. Bell (1996) 43 Cal.App.4th 754, 761; People v. Castellon (1999) 76 Cal.App.4th 1369, 1373; People v. Fields (1984) 159 Cal.App.3d 555, 563. 14 See People v. Turner (1994) 8 Cal.4th 137, 185; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Harris (1975) 15 Cal.3d 384, 389; Cantrell. v. Zolin (1994) 23 Cal.App.4th 128, 133; People v. Kaurish (1990) 52 Cal.3d 648, 675; People v. Ingle (1960) 53 Cal.2d 407, 412; People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 96; People v. Rosales (1987) 192 Cal.App.3d 759, 765; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742; People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189; People v. Jones (1981) 126 Cal.App.3d 308, 313; People v. Bowen (1987) 195 Cal.App.3d 269, 274; People v. Price (1991) 1 Cal.4th 324, 410; People v. Wilkins (1993) 14 Cal.App.4th 761, 770; People v. Boissard (1992) 5 Cal.App.4th 972, 977; People v. Conway (1990) 222 Cal. App 3d 806, 810; People v. Goldberg (1984) 161 Cal.App.3d 170, 179; People v. Gorrostieta (1993) 19 Cal.App.4th 71, 82-3; Adams v. Williams (1972) 407 US 143, 148; People v. Hernandez (1988) 47 Cal.3d 315, 341; In re Charles C. (1999) 76 Cal.App.4th 420, 423. NOTE: There is another definition that is sometimes cited: Rational Belief or Prudent Man.. This definition requires only a “rational belief”Cnot “strong suspicion”Cthat the suspect committed the crime. See Henry v. United States (1959) 361 US 98, 102; Brinegar v. United States (1949) 338 US 160, 175-6; Wong Sun v. United States (1963) 371 US 471, 479; Draper v. United States (1959) 358 US 307, 313; Beck v. Ohio (1964) 379 US 89, 91; Henry v. United States (1959) 361 US 98, 102; Gerstein v. Pugh (1975) 420 US 103, 111. 15 See Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1111 [“Probable cause to issue an arrest or search warrant [exists if] there is a fair probability that a person has committed a crime or a place contains contraband or evidence of a crime.”]; People v. Rosales (1987) 192 Cal.App.3d 759, 767-8 [“We see no reason why the full Gates rationale . . . should not be as fully applicable to the

4 PROBABLE CAUSE TO SEARCH: The thing to remember about probable cause to search is this: all that is required is a “fair probability.” Specifically, probable cause to search exists if there is a “fair probability” that the evidence is presently located at the place to be searched.16

Basic principles In determining whether probable cause or reasonable suspicion exist, the courts will apply the following basic principles. THE NEED FOR FACTS: The building blocks of both probable cause and reasonable suspicion are facts—specific facts.17 Sometimes one is enough, sometimes it takes a combination. But in every case there must be something definite upon which to base probable cause or reasonable suspicion. It follows that rumors, hunches, and unsupported conclusions are useless.18 As the U.S. Supreme Court noted in Illinois v. Gates, “A sworn statement of an affiant that ‘he has cause to suspect and does believe’ that liquor illegally brought into the United States is located on certain premises will not do.”19 COMMON-SENSE INTERPRETATION: Although facts are essential, officers are permitted—actually, required—to interpret the facts in light of common sense.20 question of probable cause to support an arrest as it is to a search.”]; Greene v. Reeves (6th Cir. 1996) 80 F.3d 1101, 1106 [“While the focus of the two tests is of course different—whether the person has committed a crime or whether evidence of a crime will be found—the prudent person standard is the same.”]; State v. Secrist (1999) 589 NW2d 387, 391 [“Generally, the same quantum of evidence is required whether one is concerned with probable cause to search or probable cause to arrest.”]. NOTE: The U.S. Supreme Court has also applied Gates’ principles in determining reasonable suspicion to detain. See Alabama v. White (1990) 496 US 325, 328-9; United States v. Sokolow (1989) 490 US 1, 7. It appears the “fair probability” standard may require somewhat less proof than either “reasonable belief” or “strong suspicion.” See Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 936; 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.1(a), pp. 6 [“By like token, Illinois v. Gates, which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well.” Citations omitted]. 16 See Illinois v. Gates (1983) 462 US 213, 238; Zurcher v. Stanford Daily (1978) 436 US 547, 556; Illinois v. Rodriguez (1990) 497 US 177, 184; People v. Glenos (1992) 7 Cal.App.4th 1201, 1207; People v. Romero (1996) 43 Cal.App.4th 440, 444; Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759, 766; People v. Andrino (1989) 210 Cal.App.3d 1395, 1401; People v. Stanley (1999) 72 Cal.App.4th 1547, 1554; People v. Gorak (1987) 196 Cal.App.3d 1032, 1039; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1719; People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564. 17 See Terry v. Ohio (1968) 392 US 1, 21-2; Illinois v. Gates (1983) 462 US 213, 239; People v. Le (1985) 169 Cal.App.3d 186, 194; People v. Maltz (1971) 14 Cal.App.3d 381, 390-1; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759, 766; Hamilton v. San Diego (1990) 217 Cal.App.3d 838, 844; People v. Anthony (1970) 7 Cal.App.3d 751, 762; People v. Bigham (1975) 49 Cal.App.3d 73, 76; People v. Stanfill (1985) 170 Cal.App.3d 420 422; People v. Harris (1980) 105 Cal.App.3d 204, 211. 18 See People v. Martin (1973) 9 Cal.3d 687, 692; People v. Valdez (1987) 196 Cal.App.3d 799, 807; Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1468; Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 328; People v. Lopez (1985) 173 Cal.App.3d 125, 136; U.S. v. Brack (7th Cir. 1999) 188 F.3d 748, 755. 19 (1983) 462 US 213, 239. 20 See United States v. Ventresca (1965) 380 US 102, 108; United States v. Harris (1971) 403 US 573, 577; Texas v. Brown (1983) 460 US 730, 742; ”]; People v. Garcia (1981) 115 Cal.App.3d 85, 100 [“(I)t is axiomatic that the courts are to interpret the affidavit in a common sense,

5 They may also make reasonable inferences based on “matters of common knowledge concerning human behavior.”21 In the words of the United States Supreme Court: Perhaps the central teaching of our decisions bearing on the probable- cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.22 TRAINING AND EXPERIENCE: Just as officers must make inferences based on matters of common knowledge, they may make inferences based on their training and experience.23 Again quoting the U.S. Supreme Court, “(T)he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”24 Or, to put it another way, “[A] trained officer draws inferences and makes deductions— inferences and deductions that might well elude an untrained person.”25 nontechnical manner.”]; Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1111 [“Courts should not invalidate search or arrest warrants by imposing hypertechnical requirements rather than a commonsense approach to probable cause.”]; People v. Romero (1996) 43 Cal.App.4th 440, 444; People v. Hansborough (1988) 199 Cal.App.3d 579, 584; People v. Superior Court (Marcil) (1972) 27 Cal.App.3d 404, 411; People v. McNabb (1991) 228 Cal.App.3d 462, 468; People v. Miller (1978) 85 Cal.App.3d 194, 200. 21 See New Jersey v. T.L.O. (1985) 469 US 325, 345-6; Massachusetts v. Upton (1984) 466 US 727, 734; Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 577][“(T)he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”]; People v. Miller (1978) 85 Cal.App.3d 194, 200; People v. Hernandez (1988) 47 Cal.3d 315, 343; Flores v. Superior Court (1971) 17 Cal.App.3d 219, 223; People v. Brown (1985) 169 Cal.App.3d 159, 165. 22 Illinois v. Gates (1983) 462 US 213, 231. 23 See Beck v. Ohio (1964) 379 US 89, 96; United States v. Brignoni-Ponce (1975) 422 US 873, 885; Florida v. Rodriguez (1984) 469 US 1, 6; People v. Profit (1986) 183 Cal.App.3d 849, 883; People v. Knutson (1976) 60 Cal.App.3d 856, 860; People v. Carvajal (1988) 202 Cal.App.3d 487, 496; People v. Chapman (1990) 224 Cal.App.3d 253, 257; People v. Stanfill (1985) 170 Cal.App.3d 420, 423; People v. Gale (1973) 9 Cal.3d 788, 795-6 [“(E)xperienced police officers naturally develop an ability to perceive the unusual and suspicious . . . .”]; People v. Andrino (1989) 210 Cal.App.3d 1395, 1401; People v. Von Villas (1992) 11 Cal.App.4th 175, 217-8 [“(A)n officer’s law enforcement experience, as well as inferences or deductions apparent to trained law enforcement officers may be considered.”; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784; People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 96; People v. Mims (1992) 9 Cal.App.4th 1244, 1248; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742; People v. Boissard (1992) 5 Cal.App.4th 972, 977-8; People v. Maltz (1971) 14 Cal.App.3d 381, 390; People v. Martino (1985) 166 Cal.App.3d 777, 790; People v. Campbell (1981) 118 Cal.App.3d 588, 597-8; People v. Medina (1972) 7 Cal.3d 30, 37; People v. Superior Court (Orozco) (1981) 121 Cal.App.3d 395, 403; People v. Parra (1999) 70 Cal.App.4th 222, 227; People v. Dunkel (1977) 71 Cal.App.3d 928, 932; People v. Goldberg (1969) 2 Cal.App.3d 30, 34; People v. Spears (1991) 228 Cal.App.3d 1, 18; People v. Andrino (1989) 210 Cal.App.3d 1395, 1401-2; People v. Kershaw (1983) 147 Cal.App.3d 750, 760; People v. Johnson (1971) 21 Cal.App.3d 235, 243; People v. Aho (1985) 166 Cal.App.3d 984, 992-3; People v. Veasey (1979) 98 Cal.App.3d 779, 785; Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 327; Flores v. Superior Court (1971) 17 Cal.App.3d 219, 223; People v. Carvajal (1988) 202 Cal.App.3d 487, 495-6. 24 Illinois v. Gates (1983) 462 US 213, 232. 25 United States v. Cortez (1981) 449 US 411, 418.

6 OFFICERS’ UNCERTAINTY AND LEGAL CONCLUSIONS: Because the existence of probable cause and reasonable suspicion depends on facts—not an officer’s subjective feelings or beliefs—it is immaterial that the officer who arrested, detained, or searched was uncertain as to the exact crime that was committed, or had arrested the suspect for the “wrong” crime, or had concluded he did not have probable cause or reasonable suspicion.26 In addition, if the facts reasonably indicate a crime has occurred, grounds to arrest, detain, or search may exist even if the officer had not yet been alerted to the crime.27 POSSIBILITY OF AN INNOCENT EXPLANATION: The courts routinely point out that probable cause may exist even though there might have been an innocent explanation for the suspect’s suspicious conduct.28

26 See Florida v. Royer (1983) 460 US 491, 507 [“(T)he fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry stop rationale would not foreclose the State from justifying Royer’s custody by proving probable cause . . .”]; People v. Adams (1985) 175 Cal.App.3d 855, 862-3 [“The conclusion of law drawn from these facts by the officer is not binding on the court. . . . Courts have never hesitated to overrule an officer’s determination he had probable cause to arrest. We see no reason why a court cannot find probable cause, based on facts known to the officer, despite the officer’s judgment none existed.”]; People v. Le (1985) 169 Cal.App.3d 186, 193; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005 [“(I)t makes no difference that the detaining officer did not himself believe he had probable cause to arrest.”]; People v. Clark (1973) 30 Cal.App.3d 549, 558; People v. Goldberg (1984) 161 Cal.App.3d 170, 179; People v. Lewis (1980) 109 Cal.App.3d 599, 609; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1262. 27 See People v. Vasquez (1983) 138 Cal.App.3d 995, 1001 [“The fact that the officers were unaware of the specific burglary of which the articles in the pillowcases were the loot did not vitiate the existence of probable cause . . . ”]; People v. Stokes (1990) 224 Cal.App.3d 715, 721 [“Given the totality of the circumstances, it was insignificant that [the officer] was unaware of the Patterson burglary or that the VCR itself had not distinctive marks suggesting it was stolen.”]; In re Donald L. (1978) 81 Cal.App.3d 770, 775; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 152 [“(T)he test for determining whether reasonable cause exists for an arrest is objective and not dependent upon the arresting officer’s subjective good faith or the accuracy of his knowledge of the ephemeral law of arrest, search and seizure.”]; People v. Howell (1973) 30 Cal.App.3d 228, 235. 28 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 577 [“(W)e cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists.”]; Adams v. Williams (1972) 407 US 143, 149 [“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.”]; In re Tony C. (1978) 21 Cal.3d 888, 894; People v. Souza (1994) 9 Cal.4th 224, 233; People v. Spears (1991) 228 Cal.App.3d 1, 18-9 [“(T)he fact that particular conduct may be innocent is not the relevant inquiry.”]; In re Frederick B. (1987) 192 Cal.App.3d 79, 87; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784; People v. Ramirez (1984) 162 Cal.App.3d 70, 74; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718; Hamilton v. San Diego (1990) 217 Cal.App.3d 838, 844; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743 [“(T)he fact that there may be some room for doubt is immaterial.”]; People v. Fourshey (1974) 38 Cal.App.3d 426, 430; People v. Duncan (1981) 115 Cal.App.3d 418, 423. NOTE: The courts also say that probable cause requires less than absolute or near certainty, less than a prima facie showing, and less than proof beyond a reasonable doubt (See Illinois v. Gates (1983) 462 US 213, 235; Brinegar v. United States (1949) 338 US 160, 172-- 5; Adams v. Williams (1972) 407 US 143, 149; Henry v. United States (1959) 361 US 98, 100; People v. Fourshey (1974) 38 Cal.App.3d 426, 430; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743; In re Trinidad V. (1989) 212 Cal.App.3d 1077, 1080; People v. Superior Court (Orozco) (1981) 121 Cal.App.3d 395, 402; People v. Lewis (1980) 109 Cal.App.3d 599, 608; People v. Case (1980) 105 Cal.App.3d 826, 831) but it does require more than a hunch, mere suspicion, or good faith belief. See People v. Martin (1973) 9 Cal.3d 687, 692; People v. Valdez (1987) 196

7 ARREST “FOR INVESTIGATION”: In this past—and it still happens on television—officers who have nothing more than reasonable suspicion would arrest a suspect “on suspicion” or “for investigation,” then take the suspect down to headquarters for questioning. This is, of course, unlawful. As the U.S. Supreme Court put it, “It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion.”29 GOOD FAITH: A detention or arrest will not be upheld merely because officers had a “good faith” belief that reasonable suspicion or probable cause existed.30 THE “OFFICIAL CHANNELS” RULE: Under the so-called “official channels” rule, officers may detain or arrest a suspect based solely, or in part, on information received from other officers through official law enforcement communications. Examples of such communications include “NCIC hits,” APB’s, BE ON THE LOOKOUT requests, wanted flyers, and information that a warrant for the suspect’s arrest is outstanding. Although officers who make a detention or arrest based on “official channels” information will probably not be aware of many, if any, of the facts that constitute reasonable suspicion or probable cause, this is immaterial. What counts is whether the facts known to the officer who requested the action constituted reasonable suspicion or probable cause.31 As the U.S. Supreme Court explained:

Cal.App.3d 799, 807. NOTE RE PRIMA FACIE: In discussing a prima facie showing that a crime was committed, the California Supreme Court observed that a prima facie showing of proof permits “the reasonable inference that a crime was committed. The inference need not be the only, or even the most compelling one but need only be a reasonable one.” People v. Jones (1998) 17 Cal.4th 279, 301-2. 29 Wong Sun v. United States (1963) 371 US 471, 479. ALSO SEE Henry v. United States (1959) 361 US 98, 101 [“Arrest on mere suspicion collides violently with the basic human right of liberty.”]; Brinegar v. United States (1949) 338 US 160, 175; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 152; Papachristou v. City of Jacksonville (1972) 405 US 156, 169 [“Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system . . . .”]; McMahon v. Municipal Court (1970) 6 Cal.App.3d 194, 197, fn.1.

30 See People v. Martin (1973) 9 Cal.3d 687, 692 [“(A) good faith belief on the part of the arresting officer is not enough.”]; Hill v. California (1971) 401 US 797, 804 [“(S)ubjective good-faith belief would not in itself justify either the arrest or the subsequent search.”[. 31 See People v. Soun (1995) 34 Cal.App.4th 1499, 1521, 1523-4; People v. Aldridge (1984) 35 Cal.3d 473, 478; Case v. Kitsap County Sheriff’s Department (9th Cir. 2001) 249 F.3d 921 [“There is a long line of cases from this and other circuits that an ‘NCIC hit,’ although not definitive in terms of conviction, has been routinely accepted in establishing probable cause for a valid arrest.”]; U.S. v. McDonald (5th Cir. 1979) 606 F.2d 552, 553-4 [“(T)he cases uniformly recognize that NCIC printouts are reliable enough to form the basis of the reasonable belief which is needed to establish probable cause for arrest.”]; U.S. v. Davis (6th Cir. 1978) 568 F.2d 514, 516 [“An NCIC identification of a vehicle is sufficient to establish probable cause for the arrest of one possessing it.”]; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; People v. Enriquez (1982) 132 Cal.App.3d 784, 791; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553-5 [traffic stop based on information from another officer that the driver was speeding]; People v. Collins (1997) 59 Cal.App.4th 988, 992-3; People v. Lara (1967) 67 Cal.2d 365, 374; People v. Davis (1986) 187 Cal.App.3d 1250, 1253; Mueller v. DMV (1985) 163 Cal.App.3d 681, 686; In re William J. (1985) 171 Cal.App.3d 72, 77; People v. Conway (1990) 222 Cal.App.3d 806, 810; People v. Senkir (1972) 26 Cal.App.3d 411, 418; People v. Hogan (1969) 71 Cal.2d 888, 891; People v. Schellin (1964) 227 Cal.App.2d 245, 251; People v. Moore (1975) 51 Cal.App.3d 610, 617 Whitely v. Warden (1971) 401 US 560, 568;

8 [E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.32 HOW GROUNDS TO DETAIN, ARREST, AND SEARCH ARE DEMONSTRATED: In determining whether there were sufficient grounds to detain a suspect or make a warrantless arrest, the courts consider only the facts known to the officers who detained or arrested the suspect or, in the case of a detention or arrest based on official-channels information, the officers who initiated the action.33 As for search warrants and Ramey arrest warrants, the courts look solely to the facts contained in the supporting affidavits, including any attachments.34 PRE- AND POST-ARREST POOLING OF INFORMATION: The courts will not permit officers to establish reasonable suspicion or probable cause by pooling information after the detention, arrest, or search has occurred.35 To put it another way, a detention without reasonable suspicion or an arrest or search without probable cause cannot be validated later by showing that reasonable suspicion or probable cause would have existed if the officers had pooled their information beforehand. If, however, two or more officers are generally communicating as to the facts developed in the course of an investigation, it is presumed that they pooled their information; i.e., the “knowledge of one is presumed shared by all.”36

U.S. v. Sawyer (7th Cir. 2000) 224 F.3d 675, 680-1; People v. Lopez (1986) 181 Cal.App.3d 842, 845; People v. Ford (1984) 150 Cal.App.3d 687, 697-8. 32 United States v. Hensley (1985) 469 US 221, 231. 33 See Beck v. Ohio (1964) 379 US 89, 96; People v. Price (1991) 1 Cal.4th 324, 409; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 821; People v. Richards (1977) 72 Cal.App.3d 510, 514; People v. Adams (1985) 175 Cal.App.3d 855, 862; Adams v. Williams (1972) 407 US 143, 148; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759, 766. 34 See Penal Code §§ 817, 1427, 1527; People v. Leonard (1996) 50 Cal.App.4th 878; People v. Kurland (1980) 28 Cal.3d 376, 384; People v. Ramey (1976) 16 Cal.3d 263, 275; People v. Case (1980) 105 Cal.App.3d 826. 35 See People v. Coleman (1968) 258 Cal.App.2d 560, 563, fn.2 [“The police cannot pool their information after an arrest made on insufficient cause.”]; People v. Rice (1967) 253 Cal.App.2d 789, 792 [“(T)he People must prove not only that the collective knowledge of the investigating authorities justified the arrest, but that such knowledge was funneled to the arresting officer either by imparting it to him or, more simply, by the giving of an order or request to make the arrest by someone who, in turn, was possessed of such collective knowledge.”]; People v. Ford (1984) 150 Cal.App.3d 687, 698. Dyke v. Taylor Implement Mfg. Co. (1968) 391 US 216, 221-2. 36 See Illinois v. Andreas (1983) 463 US 765, 771, fn.5; Bailey v. Newland (2001) 263 F.3d 1022, 1031; U.S. v. Del Vizo (9th Cir. 1990) 918 F.2d 821, 826; U.S. v. Sawyer (7th Cir. 2000) 224 F.3d 675, 680; U.S. v. Twiss (8th Cir. 1997) 127 F.3d 771, 774; People v. Rodgers (1976) 54 Cal.App.3d 508, 518 [“The record adequately supports the inference that the officers who were conducting the investigation both in Los Angeles and San Diego kept in tough with each other, so that [the knowledge of officer who ordered the arrest] with respect to probable cause included the information gathered by the others. . . This is therefore not a case of post-arrest pooling of information relevant to probable cause.”]. BUT ALSO SSEE People v. Ford (1984) 150 Cal.App.3d 687, 699-701 [the court ruled that an arrest based on probable cause is unlawful if probable cause did not exist at the time the request to arrest was made. This ruling is contrary to the established

9 HOW PROBABLE? Probable cause is all about, well, probabilities.37 So is reasonable suspicion. As for probable cause to arrest and reasonable suspicion to detain, the question is: What is the probability that this person is guilty of a crime? As for probable cause to search, the question is: What is the probability that evidence of a crime is now located at the place I want to search? But how much probability is enough? 80%? 51%? 40%? The courts won’t say because they view both probable cause and reasonable suspicion as non-technical standards, based on common sense, not capable of being reduced to mathematically-precise standards.38 Instead, they prefer to say that probable cause and reasonable suspicion exist when a reasonable officer would have believed an arrest, detention, or search was justified.39 Still, we can provide some guidance. REASONABLE SUSPICION: The degree of suspicion required is “considerably less” than a preponderance of the evidence; i.e., less than a 50% chance.40 Reasonable suspicion exists when the circumstances were consistent with criminal activity,41 and can exist even if there might have been an innocent explanation for the suspect’s conduct.42 PROBABLE CAUSE: What is required is about a 50% likelihood or maybe a little more. As the U.S. Supreme Court explained in discussing the subject of

rule that the existence of probable cause is made at the time of the arrest. NOTE: It has not yet been decided whether information will be deemed “pooled” in the absence of information that the officers were actually communicating concerning the facts giving rise to probable cause. Bailey v. Newland (2001) 263 F.3d 1022, 1031; U.S. v. Shareff (10th Cir. 1996) 100 F.3d 1491, 1503-5. 37 See United States v. Cortez (1981) 449 US 411, 418 [“The process does not deal with hard certainties, but with probabilities.”]; Illinois v. Gates (1983) 462 US 213, 241 [“Probable cause deals with probabilities.”], 243, fn.13 [“In making a determination of probable cause the relevant inquiry is . . . the degree of suspicion that attaches to particular types of noncriminal acts.”]; Brinegar v. U.S. (1949) 338 US 160, 175; Hill v. California (1971) 401 US 797, 804 [“But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.”]; People v. Spears (1991) 228 Cal.App.3d 1, 19 [“(W)e must look to the degree of suspicion that attaches to particular types of noncriminal acts.”]; People v. Garrett (1972) 29 Cal.App.3d 535, 539. NOTE: Probable cause is also defined as a “substantial chance.” See Illinois v. Gates (1983) 462 US 213, 243, fn.13; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783. 38 See Illinois v. Gates (1983) 462 US 213, 235, 241; Texas v. Brown (1983) 460 US 730742; Gerstein v. Pugh (1974) 420 US 103, 121; Brinegar v. United States (1949) 338 US 160, 174-6. 39 See Illinois v. Gates (1983) 462 US 213, 231; Brinegar v. U.S. (1949) 338 US 160, 175; United States v. Cortez (1981) 449 US 411, 418; Draper v. United States (1959) 358 US 307, 313; New Jersey v. T.L.O. (1985) 469 US 325, 346; Adams v. Williams (1972) 407 US 143, 148. 40 See U.S. v. Sokolow (1989) 490 US 1, 7; Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570]; U.S. v. Arvizu (2002) __US__. 41 See In re Tony C. (1978) 21 Cal.3d 888, 894; People v. Souza (1994) 9 Cal.4th 224, 233; People v. Brown (1990) 216 Cal.App.3d 1442, 1449; People v. Daugherty (1996) 50 Cal.App.4th 275, 287; Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-7. 42 See U.S. v. Arvizu (2002) __US__ [“need not rule out the possibility of innocent conduct”]; United States v. Sokolow (1989) 490 US 1, 10; New Jersey v. T.L.O. (1985) 469 US 325, 346; People v. Green (1994) 25 Cal.App.4th 1107, 1111; People v. Britton (2001) 91 Cal.App.4th 1112, 1119 [“(The officer’s) observations were at least sufficiently ambiguous to warrant (a detention).”]; People v. Brown (1990) 216 Cal.App.3d 1442, 1449-50; People v. Foranyic (1998) 64 Cal.App.4th 186, 189; People v. Conway (1995) 25 Cal.App.4th 385, 390; People v. Dolliver (1986) 181 Cal.App.3d 49, 56; People v. Glenos (1992) 7 Cal.App.4th 1201, 1207; People v. Guy (1980) 107 Cal.App.3d 593, 598; In re Charles C. (1999) 76 Cal.App.4th 420, 423-4.

10 probable cause to seize evidence in plain view, “[Probable cause] merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” 43 TOTALITY OF CIRCUMSTANCES: In the past, some courts would isolate each fact relied upon by officers, belittle its importance or explain it away, then conclude that because none of the many facts known to the officers was very suspicious or incriminating, probable cause did not exist.44 This practice has been thoroughly discredited and is no longer tolerated. Now the courts consider the totality of circumstances—the “total atmosphere of the case.”45 This is significant because, as the court in People v. Juarez pointed

43 Texas v. Brown (1983) 460 US 730, 742 [emphasis added]; Alabama v. White (1990) 496 US 325; People v. Holt (1989) 212 Cal.App.3d 1200, 1204; People v. Stokes (1990) 224 Cal.App.3d 715, 719; People v. Stanley (1999) 72 Cal.App.4th 1547, 1555 [“The fact that there may be more than one reasonable inference to be drawn does not defeat the issuing magistrate’s finding of probable cause.”]; 2 LaFave, Search and Seizure (3rd edition 1996) Probable Cause § 3.2(e), pp. 60-82. NOTE: Probable cause is less than a preponderance of the evidence. See People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783. A preponderance of the evidence exists if there is a greater than 50% probability. See People v. $497,590 (1997) 58 Cal.App.4th 145, 151. NOTE: Additional authority for this argument is found in search warrant cases where it is common to have probable cause to search two or more places for the same evidence; e.g., a warrant authorizing a search of the murder suspect’s home, car, and business for the murder weapon. Although it is apparent that there is less than a 50% chance of finding the weapon at any of these three locations, probable cause for each will be found if the affidavit sets forth facts which establish a fair probability that the evidence may be found in each location. As the California Supreme Court explained in People v. Easley (1983) 34 Cal.3d 858, 870, “There is no logical inconsistency in the conclusion that [a search warrant] affidavit establishes probable cause to believe that evidence of a crime will be in any one of a suspect’s homes or vehicles.” ALSO SEE: People v. Alcorn (1993) 15 Cal.App.4th 652, 655 [there was probable cause when only a 50% chance existed]; Bowyer v. Superior Court (1974) 37 Cal.App.3d 151, 161; People v. McCarter (1981) 117 Cal.App.3d 894, 901. NOTE: Some older California cases, citing People v. Ingle (1960) 53 Cal.2d 407, 412-3, have said that probable cause requires “more evidence for than against.” See People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 96; People v. Moore (1975) 51 Cal.App.3d 610, 616; People v. Rosales (1987) 192 Cal.App.3d 759, 765. But because this requirement is at odds with the U.S. Supreme Court’s definition of probable cause, the federal definition is determinative as to the lawfulness of an arrest, detention, or search. See People v. Hull (1995) 34 Cal.App.4th 1448, 1455 [“When a defendant moves to suppress evidence citing a violation of the Fourth Amendment, the federal standard for exclusion must be applied. There is no independent California standard.”]. 44 See, for example, People v. Huntsman (1984) 152 Cal.App.3d 1073; People v. Loewen (1983) 35 Cal.3d 117; Massachusetts v. Upton (1984) 466 US 727, 732 [“(T)he [lower] court insisted on judging bits and pieces of information in isolation . . .”]. 45 See Illinois v. Gates (1983) 462 US 213, 230-1; United States v. Sokolow (1989) 490 US 1, 8; Massachusetts v. Upton (1984) 466 US 727, 732 [“The [trial] court did not consider [the affidavit] in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip. Instead, the court insisted on judging bits and pieces of information in isolation . . . .”]; People v. Profit (1986) 183 Cal.App.3d 849, 881; People v. Rosales (1987) 192 Cal.App.3d 759, 768 [“(T)he Gates totality- of-the-circumstances approach applies to probable cause analyses for arrests in general . . . ”]; People v. Soun (1995) 34 Cal.App.4th 1499, 1524; People v. Ramirez (1996) 41 Cal.App.4th 1608, 1614; People v. Medina (1985) 165 Cal.App.3d 11, 19; People v. Romero (1996) 43 Cal.App.4th 440, 444; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 153.

11 out, “Running down a street is in itself indistinguishable from the action of a citizen engaged in a program of physical fitness. Viewed in context of immediately preceding gunshots, it is highly suspicious.”46 For example, in People v. McFadin the court responded as follows to the defendant’s attempt to fractionalize the facts: Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they were serve to carry the load of upholding the action of the magistrate in issuing the warrant.47 COMBINATIONS OF CIRCUMSTANCES: In determining whether the required level of probability exists, it is essential that officers understand the significance of having combinations of suspicious circumstances, and the difference between dependent and independent combinations. Combinations of circumstances are dependent if, by their very nature, they are somewhat likely to appear together. For example, assume a witness describes a robber as having red hair and freckles. These two circumstances are dependent because many people with red hair also have freckles; i.e., there is a relationship or correlation between the two. On the other hand, assume the witness describes the robber as having red hair and wearing an Oakland Raider’s sweatshirt. These two circumstances are independent because people with red hair are not more likely than anyone else to be Raider’s fans. While combinations of dependent circumstances are highly suspicious and frequently provide reasonable suspicion and probable cause, combinations of independent circumstances are especially formidable. For instance, if there is one circumstance indicating guilt, the addition of a second incriminating circumstance—if completely independent of the first—does much more than double the probability of guilt. Such a “coincidence of information”48 causes an exponential increase in the odds of having reasonable suspicion or probable cause. Officers sometimes lose sight of this and conclude they don’t have probable cause when they do. For example, in People v. Pranke49 officers who were investigating a residential burglary in Los Angeles developed the following information: One morning, the defendant knocked on the door of a house owned by a man who had been a casual acquaintance of the defendant. The defendant told the owner that

46 (1973) 35 Cal.App.3d 631, 636. 47 (1982) 127 Cal.App.3d 751, 767. ALSO SEE People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 97 [“Even if no single fact met the test for reasonable cause, the totality of information available to the officer from a number of sources was sufficient . . . . In adopting a [totality of circumstances] approach in this area, courts are not being innovative; they are merely accepting the fact that straight line measurements (i.e. weighing each individual factor separately) may not always provide the proper answers. Both the psychologist who studies human behavior, and the policeman who deals with problems on his beat, have learned that the ultimate configuration or structure that evolves from total experience is not necessarily the simple total of its constituent parts.”]. 48 See Ker v. California (1963) 374 US 23, 36. 49 (1970) 12 Cal.App.3d 935.

12 he needed the phone number for a mutual friend. Shortly after the owner left the house, it was burglarized. The next day, LAPD officers went to the defendant’s last known address. There, they spoke with a man who lived in the apartment across the hall. He said the defendant had moved out but had left some property with him. The man showed the officers the property; it included a jewelry case and some jewelry that matched the description of items taken in the burglary. In ruling these facts constituted probable cause to arrest the suspect for burglary, the court pointed out: It is unnecessary to establish the mathematical probability statistics, of (1) any given person visiting a casual acquaintance for the first time in a year and one-half; (2) a burglary occurring thereafter the moment the resident has departed the premises; (3) property stolen therefrom being found the following day in a box located in an apartment adjoining that formerly occupied by the visitor; and (4) the party in possession of the box having volunteered the information that its contents belonged to the visitor prior to the discovery that it contained the fruits of the burglary. It is merely necessary for us to hold, as we do, that when such remarkable coincidences coalesce, they are sufficient to warrant a prudent man in believing that the defendant has committed an offense. Another example: The body of a 15 year old girl was found in an irrigation ditch near her home. There were indications she had been sexually assaulted. Witnesses reported seeing a “uniquely painted” black and turquoise 1952 Plymouth parked about two-tenths of a mile from the victim’s house at about the time her disappearance. There were boot prints leading from the area of the car in the direction of the victim’s house, and footprints leading back. The car was traced to the defendant’s hotel. Investigators learned the defendant had a prior conviction for rape and that he had worked at a ranch where the victim had worked as a babysitter. This combination of facts, ruled the Court of Appeal, clearly established probable cause to arrest the defendant. Said the court, “The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.”50 The same accelerated statistical probability may result when there are two or more suspects. For example, a general description of a robbery suspect may not justify a detention of a person in the area who matches the description. But general descriptions of two people who committed a robbery may justify a detention—and maybe even an arrest—of two people in the area who matched those general descriptions. As the trial court observed in In re Brian A.: When you have identification of one person and you have identification of a second person and then you make an interrelationship between the two, the inference value is progressing in logarithmic quantities. And so I think the inference value is very, very high, sufficient to constitute probable cause, when you develop that kind of a relationship.

50 People v. Hillery (1967) 65 Cal.2d 795.

13 The Court of Appeal agreed, noting, “Where, as here, there were two perpetrators and an officer stops two suspects who match the descriptions he has been given, there is much greater basis to find sufficient probable cause for arrest. The probability of there being other groups of persons with the same combination of physical characteristics, clothing, and trappings is very slight.” 51

KEY CIRCUMSTANCES In the absence of direct evidence, officers must rely on circumstantial evidence to establish reasonable suspicion and probable cause. Although there are a “bewilderingly diverse”52 number of relevant circumstances, some of them show up regularly in police reports and court testimony as reasons for detaining, arresting, and searching suspects. It will, therefore, be helpful to know how the courts view these circumstances and how much weight they are given. Granted, some of this is just common sense. Most people who see a masked man running out of a bank while the hold-up alarm is sounding won’t have any difficulty figuring out that he has just robbed the place. But most of the situations that officers confront are not so open and shut. In fact, reasonable suspicion and probable cause are often based on combinations of things—often little things.

Physical descriptions In I.D. cases, such as murder, robbery, burglary, and rape, a similarity or match between the physical descriptions of the perpetrator and the suspect is a significant—often decisive—circumstance. The same goes for clothing and vehicle descriptions. Whether such a similarity or match constitutes reasonable suspicion or probable cause depends on four things: NUMBER OF SHARED CHARACTERISTICS: How many points of similarity were there? In the case of physical descriptions, the courts look at how many points of similarity there were in such things as sex, race, age, height, and weight.53 In clothing descriptions, it’s the nature of the clothing (e.g., jacket, shirt, hat, running shoes) and their color and design. With vehicles, descriptions may include the make, model, year, color, customizing, bumper stickers, visible damage, partial license plate number. UNIQUE, UNUSUAL CHARACTERISTICS: Often more important than the raw number of corresponding characteristics is whether any of them can be fairly described as unusual or distinctive.54 Some examples: same or similar license plate number,55 mag wheel on right side of car,56 car was a “dark colored, fastback General Motors sedan of a model year

51 (1985) 173 Cal.App.3d 1168, 1173. ALSO SEE People v. Joines (1970) 11 Cal.App.3d 259, 263 [“The fact that there were two persons fitting descriptions given for the two suspects narrowed the chance of coincidence.”]; People v. Britton (2001) 91 Cal.App.4th 1112, 1118-9 [“This evasive conduct by two people instead of just one person, we believe, bolsters the reasonableness of the suspicion that there is criminal activity brewing.”]; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1092. 52 See People v. Anthony (1970) 7 Cal.App.3d 751, 760. 53 See In re Brian A. (1985) 173 Cal.App.3d 1168, 1174 [“The descriptions significantly matched as to age, height, weight, sex, race, and the bag being carried. Although the number of points of comparison is not necessarily dispositive, here, it is quite high.”]. 54 In re Brian A. (1985) 173 Cal.App.3d 1168, 1174.

14 somewhere in the forties,” a “uniquely painted black and turquoise 1952 Plymouth,”57 perpetrator had scar under his eye,58 perpetrator wore a “shiny red hood,”59 perpetrator wore a “red 49’er baseball cap backwards,”60 perpetrator had a bandage on his left hand,61 perpetrator was carrying a “white tennis bag,”62 one of several adults who committed a robbery and murder appeared to be about 12-years old.63 In contrast, in People v. Johnson an attempt to link a bank robbery with an attempted murder on the basis that both perpetrators were armed with a blue- steel revolver failed because, as the court point out, “[V]irtually all handguns are either blue-steel or chromium and either a revolver or automatic.”]. COMBINATIONS OF CIRCUMSTANCES: As noted earlier, the chances of having reasonable suspicion or probable cause increase dramatically if there were two or more independent circumstances indicating guilt. Thus, even if the description of the perpetrator was rather general, a detention might be justified if, in addition to matching that general description, there were other mildly or moderately suspicious circumstances. For example, detentions—and sometimes even arrests—have been deemed justified when, in addition to the suspect’s fitting a rather general description of the perpetrator, the following circumstances existed: * Suspect wore clothing similar to that of the perpetrator64 * Suspect was an occupant of a car similar in appearance to the car used by the perpetrator. 65 * Suspect was with one or more other people who matched a general description of the two perpetrators.66 * Suspect was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.67

55 See People v. Watson (1970) 12 Cal.App.3d 130, 134-5; People v. Davis (1969) 2 Cal.App.3d 230. 56 People v. Brooks (1975) 51 Cal.App.3d 602, 605. 57 See People v. Hillery (1967) 65 Cal.2d 795, 804. 58 See People v. Hill (2001) 89 Cal.App.4th 48, 55. 59 See In re Brian A. (1985) 173 Cal.App.3d 1168, 1174. 60 See People v. Soun (1995) 34 Cal.App.4th 1499, 1524-5. 61 See People v. Joines (1970) 11 Cal.App.3d 259, 264. 62 See People v. Franklin (1985) 171 Cal.App.3d 627, 634. 63 See People v. Soun (1995) 34 Cal.App.4th 1499, 1524-5 64 See People v. Anthony (1970) 7 Cal.App.3d 751, 763; People v. Adams (1985) 175 Cal.App.3d 855, 861; Chambers v. Maroney (1970) 399 US 42, 46-7. 65 See People v. Hill (2001) 89 Cal.App.4th 48, 55; People v. Soun (1995) 34 Cal.App.4th 1499, 1524-5; People v. Watson (1970) 12 Cal.App.3d 130, 134-5; People v. Davis (1969) 2 Cal.App.3d 230, 237; People v. Huff (1978) 83 Cal.App.3d 549, 557; In re Dung T. (1984) 160 Cal.App.3d 697, 712-3 [detention justified, not arrest]; People v. Flores (1974) 12 Cal.3d 85, 91; People v. Jones (1981) 126 Cal.App.3d 308, 313-4; People v. Moore (1975) 51 Cal.App.3d 610, 617; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Orozco (1981) 114 Cal.App.3d 435, 445. 66 See In re Brian A. (1985) 173 Cal.App.3d 1168, 1174; People v. Soun (1995) 34 Cal.App.4th 1499, 1525-6. 67 See People v. Atmore (1970) 13 Cal.App.3d 244, 246 [“(The officer) was informed of the approximate age of the suspect and of the fact that he was supposed to be wearing a dark jacket. More important, perhaps, the murder mentioned in the broadcast had evidently just been committed and defendant was walking away from the scene of its commission.”]; People v.

15 * Suspect did something that tended to demonstrate consciousness of guilt, such as lying to officers, making a furtive gesture, reacting unusually to the officer’s presence, or attempting to elude officers.68 * Suspect was found in possession of the fruits or instrumentalities of the crime.69 * Suspect was in the company of a person who was positively ID’d as one of two men who had just committed a crime.70 * The number of suspects in the vehicle was the same as the number of people who had just committed the crime.71 DISCREPANCIES: The courts understand that witnesses may inadvertently provide officers with inaccurate or inconsistent descriptions. As the court noted in People v. Smith, “Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field.”72 In addition, it may be difficult or impossible for officers to remember every detail of every description broadcast over the police radio.73 For these reasons, officers will usually allow room for the type of errors that they have come to expect, especially when the suspect was detained, not arrested. For example, height and weight descriptions are usually just ballpark estimates. A witness’s description of the color of clothing and cars may vary depending on lighting conditions. Thus, the Court of Appeal has said, “It is enough if there is adequate conformity between the description and fact to indicate to reasonable

Overten (1994) 28 Cal.App.4th 1497, 1505; Dawkins v. Los Angeles (1978) 22 Cal.3d 126, 133; People v. McCluskey (1981) 125 Cal.App.3d 220, 226; In re Louis F. (1978) 85 Cal.App.3d 611, 615; People v. Harris (1975) 15 Cal.3d 384, 389; People v. Anthony (1970) 7 Cal.App.3d 751, 763; In re Rafael V. (1982) 132 Cal.App.3d 977, 982. COMPARE In re Jorge S. (1977) 34 Cal.App.3d 852, 857 [general description, crime occurred 11 days earlier]. 68 See People v. Coleman (1991) 229 Cal.App.3d 321, 326; People v. Fields (1984) 159 Cal.App.3d 555, 564; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Adams (1985) 175 Cal.App.3d 855, 861; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; People v. Smith (1981) 120 Cal.App.3d 282, 288; People v. Turner (1994) 8 Cal.4th 137, 186; People v. Overten (1994) 28 Cal.App.4th 1497, 1505. 69 See People v. Hagen (1970) 6 Cal.App.3d 35, 43; People v. Morgan (1989) 207 Cal.App.3d 1384, 1389; People v. Anthony (1970) 7 Cal.App.3d 751, 763; People v. Rico (1979) 97 Cal.App.3d 124, 129; People v. Turner (1994) 8 Cal.4th 137, 186. 70 See People v. Bowen (1987) 195 Cal.App.3d 269, 274; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1092; In re Carlos M. (1990) 220 Cal.App.3d 372, 382 [“(W)here, as here, a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant’s proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions.”]. 71 See People v. Soun (1995) 34 Cal.App.4th 1499, 1524. COMPARE In re Dung T. (1984) 160 Cal.App.3d 697, 713. 72 (1970) 4 Cal.App.3d 41, 48. ALSO SEE People v. Rico (1979) 97 Cal.App.3d 124, 132 [“both a Chevrolet and a Cadillac are large cars and General Motors’ products and one might be mistaken for the other.”]. 73 See Williams v. Superior Court (1985) 168 Cal.App.3d 349, 361 [“While officers should not be held to absolute accuracy of detail in remembering the numerous crime dispatches broadcast police radio, Fourth Amendment guarantees require demonstration of the reasonableness under the circumstances . . . .”].

16 officers that detention and questioning are necessary to the proper discharge of their duties.”74 For example, in People v. Craig the court ruled that, despite some discrepancies, officers had reasonable suspicion to detain three men suspected of robbery. Said the court, “Defendants did not perfectly match the general descriptions given, however, since the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number), we hold the officers acted reasonably, under the circumstances, in stopping and initially detaining the defendants.”75 For example, the following discrepancies did not affect the courts’ determination that, under the totality of circumstances, reasonable suspicion or probable cause existed: * 2-door car was described as a 4-door.76 * White 1961 Chevrolet with four occupants described as a 1962 White Chevrolet with three occupants.77 * Tan over brown 1970 Oldsmobile, license 276AFB was described as a 1965 Oldsmobile or Pontiac, license 276ABA.78 * Yellow 1959 Cadillac, license number XQC33 was described as a yellow 1958 or 1959 Cadillac with partial plate of OCX.79 * A witness to an assault at night on a dark field said the perpetrator wore a dark stocking cap, dark pullover, dark pants, light sneakers. Suspect was wearing a yellow knit cap, blue jogging suit, dark windbreaker, red track shoes.80 On the other hand, some discrepancies are so significant as to preclude reasonable suspicion or probable cause. A rather extreme example: A robber was 20 years younger and about five inches shorter than the detainee, plus he had a beard while the detainee was clean shaven.81 And in another robbery case in which there was a six-inch height discrepancy, the court didn’t buy the officers testimony that “it was necessary to take into consideration that witnesses who make observations under menacing circumstances are often very upset and may not have exact recollections.”82 GETAWAY CAR NOT A DISCREPANCY: If witnesses did not report seeing a getaway car, the fact that the suspect was detained or arrested in a car is not a discrepancy. This is because it is usually reasonable for officers to infer that a suspect who made a getaway on foot eventually got into a car. If witnesses did not see a getaway car, officers may infer that one was used, absent persuasive evidence to the contrary. Thus, when a detention or arrest was based partly on

74 People v. Smith (1970) 4 Cal.App.3d 41, 48-9. 75 (1978) 86 Cal.App.3d 905, 911-2. 76 People v. Brooks (1975) 51 Cal.App.3d 602, 605. 77 People v. Smith (1970) 4 Cal.App.3d 41, 48. 78 See People v. Jones (1981) 126 Cal.App.3d 308, 313-4. 79 People v. Watson (1970) 12 Cal.App.3d 130, 134-5 [“The license number, althought not the same as the given ‘OCX,’ was the somewhat similar ‘XQC’; two of the letters were similar in appearance in the license, ‘Q’ being many times mistaken for ‘O.’”]. 80 Dawkins v. Los Angeles (1978) 22 Cal.3d 126, 133. 81 See Williams v. Superior Court (1985) 168 Cal.App.3d 349, 360. 82 People v. Johnson (1990) 220 CallApp.3d 742, 747.

17 the suspect’s presence in a vehicle near a crime scene or on a logical escape route, the fact that witnesses did not see a vehicle will not negate reasonable suspicion or probable cause.83 ACCOMPLICE-DRIVER NOT A DISCREPANCY: Absent persuasive evidence to the contrary, officers may usually infer the perpetrator had an accomplice to drive the getaway car even if witnesses did not see an accomplice. Thus, a detention of a car occupied by two people will probably not be invalidated even though the crime was committed by one person.84

Reaction to seeing officers For obvious reasons, people who commit crimes tend to get jittery when they see an officer. This is especially true if they are in the process of committing a crime, or had just committed one, or if they were in possession of drugs, stolen property or other contraband. Of course, some crooks—probably out of force of habit—get frazzled when they see an officer even when they’re not doing anything wrong. But the fact remains that when a person displays nervousness at the sight of a police officer, the officer will take notice. It’s a suspicious circumstance. The courts share this view—but not totally. Because law-abiding people sometimes become nervous when they see an officer, and because the characteristics that are associated with nervousness are sometimes quite subtle and ambiguous, nervousness will not have much weight unless officers can prove the following: (1) REACTION TO OFFICERS: There must be reason to believe the suspect’s nervousness was in response to seeing an officer. In other words, “A crucial ingredient of the inferential chain is that the citizen knows that those who are approaching are, in fact, police officers, either because they are driving marked cars or are wearing uniforms.”85 Such knowledge may also be inferred if the suspects looked directly at plainclothes officers and immediately reacted; e.g., “Lets get out of here.”86 The courts have also inferred such knowledge when officers were in an unmarked or “semi-marked” car. For example, when this issue was raised in Flores v. Superior Court, the court responded, “[T]o the person involved in the narcotics traffic, three men in plain clothes, riding in an unmarked car, cruising at a slow speed in an area of high narcotic activity are about as inconspicuous as three bull elephants in a backyard swimming pool. Any normal person in the narcotics culture would assume them to be ‘narks.’”87

83 See People v. Overten (1994) 28 Cal.App.4th 1497, 1505; People v. Joines (1970) 11 Cal.App.3d 259, 263. 84 84 See People v. Joines (1970) 11 Cal.App.3d 259, 263; People v. Chandler (1968) 262 Cal.App.2d 350, 354 [“It is common knowledge that frequently, perhaps more often than not, where an automobile is used as a robbery getaway car, one or more persons remain in the vehicle.”]; People v. Anthony (1970) 7 Cal.App.3d 751, 761 [“(It is a) well-known fact that automobiles are frequently a facility for the perpetration of crime and an aid in the escape of criminals.”]; People v. Conway (1994) 25 Cal.App.4th 385, 390. 85 People v. Huntsman (1984) 152 Cal.App.3d 1073, 1091 [“Here, the officers were in plain clothes and were driving an unmarked car at night . . .”]; People v. Tenney (1972) 25 Cal.App.3d 16, 27. 86 See Florida v. Rodriguez (1984) 469 US 1, 6. 87 (1971) 17 Cal.App.3d 219, 224. PROSECUTORS NOTE: It is best to elicit testimony

18 (2) EXTREME OR UNUSUAL REACTION: The second requirement is that the suspect’s reaction to the officer’s presence must have been suspicious. This usually means the reaction must have been extreme or unusual. The following reactions are fairly common and have been analyzed by the courts: EYE CONTACT: The fact that the suspect made, or failed to make, eye contact with an officer is virtually irrelevant. As the U.S. Court of Appeal observed, “[A]lthough eye contact, or the lack thereof, may be considered as a factor establishing reasonable suspicion, we have noted that whether the contact is suspicious or not is highly subjective and must be evaluated in light of the circumstances of each case. The skepticism with which this factor is treated is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve into a case of damned if you do, equally damned if you don’t.”88 EXTREME ATTENTION TO OFFICERS: Although not a pivotal circumstance, a suspect’s extreme attention to officers is a relevant fact that will be noted by the courts. Examples: * “The defendant upon seeing the [police] car did not give it the passing glance of the upright, law abiding citizen. His eyes were glued on that car. To him, it represented danger until proven otherwise.”89 * “[The officer] also noticed that [the suspect] appeared to be startled by him, had a ‘look of fear in his eyes’ and then quickly looked away.”90 * “The occupants of the Chevrolet were excessively attentive to the officers. . . [They] stared intently at the officers. [One of the officers] characterized it as just about ‘eyeball contact’ and explained that in his experience people who had shown that much attention to him as a police officer turned out to have been up to something.”91 Extreme inattention to officers: A suspect’s obvious attempt to ignore officers or pretend they were not there may be somewhat suspicious. For example in United States v. Arvizu,92 the Court took note that a suspected smuggler, who establishing why it is reasonable for officers to believe that suspect recognized the unmarked car as a police car. Furthermore, there should be testimony that the suspect looked in the direction of the officer or car, that there were no obstructions between the suspect and the officer, and there was enough light for the suspect to see the officer or car. 88 U.S. v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1136. ALSO SEE People v. Valenzuela (1994) 28 Cal.App.4th 817, 828; U.S. v. Moreno-Chaparro (5th Cir. 1999) 180 F.3d 629, 632; U.S. v. Davis (10th Cir. 1996) 94 F.3d 1465, 1468; U.S. v. Mallides (9th Cir. 1973) 473 F.2d 859, 861, fn.4[“Here, the officers concluded that not looking was suspicious. In People v. Williams (1971) 20 Cal.App.3d 590, the officer testified that defendant’s looking at an approaching police car was suspicious.”]; Nicacio v. INS (9th Cir. 1986) 797 F.2d 700, 704 [“Although routine reliance on lack of eye contact is inappropriate, we also recognize that special circumstances may make innocent avoidance of eye contact improbable and thus a factor contributing to a reasonable suspicion justifying a stop.”]; Gonzalez-Rivera v. INS (9th Cir. 1994) 22 F.3d 1441, 1446-7; U.S. v. Garcia- Camacho (9th Cir. 1995) 53 F.3d 244, 246-7. 89 Flores v. Superior Court (1971) 17 Cal.App.3d 219, 224. 90 People v. Fields (1984) 159 Cal.App.3d 555, 564. ALSO SEE People v. Harris (1980) 105 Cal.App.3d 204, 212 [“scrutinizing the movements of the officers.”]; People v. Juarez (1973) 35 Cal.App.3d 631, 635 [“(The suspect) twice looked back at the marked police car.”]; People v. Amick (1973) 36 Cal.App.3d 140, 143 [passenger in a car turned around on “a couple of occasions” and looked at the police car]. 91 People v. Joines (1970) 11 Cal.App.3d 259, 263. 92 (2002) __ US __.

19 was driving by a patrol car, “appeared stiff and his posture very rigid. He did not look at [the officer] and seemed to be trying to pretend that [the officer] was not there.” NERVOUSNESS: Nervousness upon seeing an officer or patrol car may be a factor. But because some law-abiding people may become nervous when they see an officer or patrol car, the importance of such a reaction depends on whether the suspect’s nervousness could reasonably be characterized as unusual or extreme.93 SHOCK: While extreme attention to officers and nervousness are somewhat suspicious, outright shock belongs in the “highly suspicious” category.94 After all, the presence of an officer would not ordinarily startle your average law-abiding citizen.95 There are, of course, varying degrees of shock. So, generally speaking, the more panicky the reaction, the more suspicion is generated. Suspicious reactions have included a “shocked look,”96 the look of a “kid with his hand caught in the cookie jar,”97 a “look of fear in his eyes,”98 yelling “Jesus Christ, the cops!”99

93 See People v. Profit (1986) 183 Cal.App.3d 849, 882 [“extreme nervousness”]; People v. Garcia (1981) 121 Cal.App.3d 239, 245; Flores v. Superior Court (1971) 17 Cal.App.3d 219, 224; People v. Brown (1985) 169 Cal.App.3d 159, 164-5; People v. Moore (1968) 69 Cal.2d 674, 683; People v. One 1960 Cadillac (1964) 62 Cal.2d 92, 96; People v. Valenzuela (1994) 28 Cal.App.4th 817, 828; People v. Daugherty (1996) 50 Cal.App.4th 275, 288; U.S. v. Withers (7th Cir. 1992) 972 F.2d 837, 843; People v. Handy (1971) 16 Cal.App.3d 858, 860 [when the suspects looked at the police car “their conversation ceased and their hands went into their pockets very rapidly.”]. 93 See People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743 [“Any doubt (the officer] might have had would have been resolved by Guajardo’s demonstrated consciousness of guilt [he kept looking around as he approached the patrol car, appearing nervous and anxious to leave the area.”] 93 See People v. Profit (1986) 183 Cal.App.3d 849, 882; People v. Methey (1991) 227 Cal.App.3d 349, 358 [suspect “perspiring and shaking” was a significant factor]; U.S. v. Brown, (7th Cir. 1999) 188 F.3d 860, 865 [“(Brown) was more nervous than one would expect in a routine traffic stop, and his failure to meet [the officer’s] gaze. . . . The totality of circumstances also included Brown’s repeatedly glancing back towards the car in question . . . ”]; People v. Dickey (1994) 21 Cal.App.4th 952, 956 [run-of-the-mill nervousness]; People v. Lawler (1973) 9 Cal.3d 156, 162 [“Defendant’s nervousness could understandably result from extended police questioning because of a traffic violation”]; U.S. v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1136 [“(A)lthough eye contact, or the lack thereof, may be considered as a factor establishing reasonable suspicion, we have noted that whether the contact is suspicious or not is highly subjective and must be evaluated in light of the circumstances of each case. The skepticism with which this factor is treated is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve into a case of damned if you do, equally damned if you don’t.”]. ALSO SEE People v. Brown (1985) 169 Cal.App.3d 159, 165. 94 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576 [“Our cases have recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”]. 95 See People v. Garcia (1981) 121 Cal.App.3d 239, 246 [“A citizen innocently loading a television into a car trunk at 7 p.m. . . is not likely to be ‘shocked’ by the nonthreatening observation of his activities by uniformed police officers.”]. 96 People v. Garcia (1981) 121 Cal.App.3d 239, 245. 97 People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189; People v. Fay (1986) 184 Cal.App.3d 882, 893. 98 See People v. Fields (1984) 159 Cal.App.3d 555, 564. 99 People v. Bigham (1975) 49 Cal.App.3d 73, 78.

20 turning pale with hands shaking and eyes glued to the officer100; and yelling “Oh shit, oh shit. Don’t say anything.”101 A SHOUTED WARNING: An apparent warning to others that officers are approaching is somewhat like shock, except it’s more obvious; e.g., “Bobby run, it’s the narcs,” or “Let’s get out of here.”102 It is even more suspicious when there is an immediate reaction to the warning, such as dispersal of a group,103 or when two men involved in a hand-to-hand exchange suddenly put their hands in their pockets.104 FURTIVE GESTURES: The term “furtive gesture” is ordinarily used to describe a movement by a suspect, usually of the hands or arms, that, (1) reasonably appeared to have been made in response to seeing an officer;105 and (2) reasonably appeared to be an attempt by the suspect to hide, discard, retrieve, or distance himself from an object, such as drugs or a weapon.106 Furtive gestures, such as the following, are usually considered highly relevant: * When officers spotlighted a car full of teenagers at 3:30 A.M., one of them “ducked down in the front seat and put his arm up over his head bringing his jacket with it trying to shield himself from the view of the officers.”107 * The suspect, upon seeing officers, quickly made a “hand-to-mouth movement, as though secreting drugs.”108 * The suspect “attempted to conceal the [marijuana] cigarette by removing it from his ear and ‘palming’ it . . . .”109 * The suspect “suddenly put his hand into the bulging pocket.”110

100 People v. Brown (1985) 169 Cal.App.3d 159, 162. Edited. 101 People v. Vasquez (1983) 138 Cal.App.3d 995, 999-1000. 102 See Sibron v. New York (1968) 392 US 40, 66-7; Florida v. Rodriguez (1984) 469 US 1, 6; Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 516; People v. Mendoza (1986) 176 Cal.App.3d 1127, 1130. 103 See People v. Brown (1990) 216 Cal.App.3d 1442, 1450. 104 See People v. Mims (1992) 9 Cal.App.4th 1244, 1246. 105 People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 821; People v. Conley (1971) 21 Cal.App.3d 894, 899 [“(T)he rationale of the furtive gesture doctrine applies only where the gesture is made in response to seeing an approaching police officer; the theory is that it is a natural impulse on confrontation for a guilty person to conceal contraband.”]. 106 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576 [“Our cases shave also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Citations omitted.]; People v. Guy (1980) 107 Cal.App.3d 593, 598 [“Furtive action like flight from the scene of a crime may well be an expression of consciousness of guilt providing probable cause to search.”]; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742 [may consider “conduct (such as a covert or secretive display, transfer or exchange”]; Gallik v. Superior Court (1971) 5 Cal.3d 855, 859. ALSO SEE People v. Moore (1970) 13 Cal.App.3d 424, 435 [“Acts which may appear innocent to an uninformed bystander nevertheless can take on a sinister significance when viewed in the light of information leading one to believe that the acts are in furtherance of a criminal enterprise.”]. COMPARE People v. Dickey (1994) 21 Cal.App.4th 952 [“Just how this activity [moving around in the driver’s seat] is invested with a ‘guilty meaning’ is not explained in the record.]; In re John C. (1978) 80 Cal.App.3d 814, 819, fn.3. 107 In re Jonathan M. (1981) 117 Cal.App.3d 530, 535. ALSO SEE People v. Souza (1994) 9 Cal.4th 224, 240. 108 People v. Johnson (1991) 231 Cal.App.3d 1, 12. ALSO SEE People v. Doherty (1967) 67 Cal.2d 9. 109 See People v. Poole (1975) 48 Cal.App.3d 881, 888.

21 * Suspect turned away from officers when they announced they were police officers with a search warrant.111 * When an officer approached three suspects, one of them attempted to disassociate himself from the group; i.e., he “dropped back behind [the others] and changed his direction of movement.”112 * As the officers displayed their badges, “two of the females in the doorway jumped back into the apartment and the sole male in the group made a furtive movement towards his waist.”113 * Officers stopped two robbery suspects in a car. When an officer asked to see the registration, the passenger opened the glove box. As he “probed the compartment with his right hand, he shielded the interior with his left hand. * When he moved his right hand over to the left potion of the compartment, he slid his other hand across to the other side of the compartment.”114 * The suspect “was holding his hands clasped together in front of a bulge in the waistband in the middle of his waist. [The officer] thought defendant was trying to hide a weapon.”115 * The suspect “was keeping his right side turned from the officer’s view and appeared to have his right hand in his jacket pocket.”116 * Officers saw the suspect “reach into the back of his waistband and secrete in his hands an object which he had retrieved . . . .”117 “[The officer saw] defendant’s left hand above his shoulder but his right hand remained near the right hand pocket of his jacket . . . .” 118 * A passenger in a car stopped for a traffic violation “lifted himself up from the seat with both arms in his rear portion of his body behind his back, both arms went up and down rapidly.”119 * In addition to the fact the driver suddenly reached under the front seat, “we have the contemporaneous sound of metal on metal and the officer’s fear created by the increased level of gang activity in the area.” 120 Although the courts routinely say that a furtive gesture is not enough, in and of itself, to give rise to reasonable suspicion,121 as a practical matter not much more is required.122

110 People v. Rosales (1989) 211 Cal.App.3d 325, 330. ALSO SEE Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 516, 519. 111 People v. Valdez (1987) 196 Cal.App.3d 799, 806. ALSO SEE People v. Stokes (1990) 224 Cal.App.3d 715 [burglary suspect was carrying a “rectangular object” wrapped in an afghan]. 112 People v. Profit (1986) 183 Cal.App.3d 849, 882. 113 People v. Meyers (1970) 6 Cal.App.3d 601, 607. 114 People v. Joines (1970) 11 Cal.App.3d 259, 264. 115 People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 956. ALSO SEE People v. Woods (1970) 6 Cal.App.3d 832, 838 [hand of “shots fired” suspect concealed in jacket pocket]. 116 In re Glenn R. (1970) 7 Cal.App.3d 558. 117 In re John C. (1978) 80 Cal.App.3d 814, 819. 118 People v. Wigginton (1973) 35 Cal.App.3d 732, 737. 119 People v. Clayton (1970) 13 Cal.App.3d 335. 120 People v. King (1989) 216 Cal.App.3d 1237. 121 See Sibron v. New York (1968) 392 US 40, 66-7; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 818; People v. Conley (1971) 21 Cal.App.3d 894, 899. 122 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576][“Our cases have recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”]; People

22 OBVIOUS ATTEMPT TO HIDE SOMETHING: Unlike a suspect who makes a furtive gesture, a suspect who is obviously trying to hide something from officers, or destroy it, has given up any hope that he can accomplish his objective surreptitiously. He doesn’t care if officers think he’s guilty of something—he just wants to make sure they can’t prove it. Although an attempt to hide or destroy an unknown object will not, in and of itself, justify a detention or arrest, it is certainly a suspicious circumstance. As the Court of Appeal observed, “The appearance of a police officer, even when unexpected, would not lead an innocent citizen . . . to attempt to hurl his personal property into the night.”123 Consequently, an attempt to hide or discard something may constitute grounds to detain or arrest if there were other circumstances that reasonably indicated the item was a weapon or contraband. Examples: * The sound of a toilet flushing greets officers as they arrive at a house to execute a warrant to search for drugs. As the court noted in People v. Clark, “The repeated flushing of the toilet behind the locked door of the bathroom in premises where marijuana is being kept and the police are at the threshold is almost a commonplace signal of the destruction of evidence.”124 * While officers were executing a warrant to search the suspect’s house for evidence in a burglary, the suspect grabbed a diary, yelled “That’s mine,” and started to leave the room.125 * While an officer was questioning a suspect who was sitting in a car, “a plastic box containing a brown substance fell from the visor, bounced off the seat and landed at the feet of the officer and appellant. The officer started to reach down to return the box to appellant, when appellant suddenly grabbed it and shouted, ‘This is an illegal search. You can’t have it.’ At the same time, appellant stepped back, placed the box behind his back, and attempted to shove the box underneath and in back of the front seat.”126 * When officers initiated a traffic stop on a car, the driver “appeared to shuffle the upper portion of his body abnormally, as though he were grabbing something on the front seat.” As the officers approached the car, they saw the driver “pushing a white box under the front seat and [the passenger] putting a metallic tin under the front seat by the box.”127

v. King (1989) 216 Cal.App.3d 1237. NOTE: In the past, some courts in California downplayed the importance of furtive gestures because of the possibility there might have been an innocent explanation for them. See, for example, People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 823; People v. Bower (1979) 24 Cal.3d 638, 647; People v. Loewen (1983) 35 Cal.3d 117, 126-7. This view has now been discredited. See United States v. Sokolow (1989) 490 US 1, 10; Illinois v. Gates (1983) 462 US 213; People v. Green (1994) 25 Cal.App.4th 1107, 1111 123 People v. Holloway (1985) 176 Cal.App.3d 150, 156. ALSO SEE People v. Limon (1993) 17 Cal.App.4th 524, 533 [“Before and after the exchange defendant walked over and reached into an apparent hiding place. This conducted suggested drug sales.”]. 124 (1968) 262 Cal.App.2d 471, 475. ALSO SEE People v. Alaniz (1986) 182 Cal.App.3d 903, 906 [“Keenly aware of appellant’s penchant for flushing toilets even when nature did not call . . . ”]; People v. Freeny (1974) 37 Cal.App.3d 20, 29; People v. Meyers (1970) 6 Cal.App.3d 601, 607-8. 125 People v. Miller (1976) 60 Cal.App.3d 849. 126 People v. Torralva (1971) 17 Cal.App.3d 686, 689. 127 People v. Superior Court (Vega) (1969) 272 Cal.App.2d 383, 387.

23 * Narcotics officers saw the suspect apparently buying rock cocaine. The officers followed the suspect’s car to a motel. As he got out of his car and saw the officers, he got “a surprised look on his face,” reached into his pants pocket and got back inside the car. He then handed a zip-lock baggie to a passenger in the car. The passenger threw the baggie to the car floor. Court: “[D]efendant’s act of handing the zip-lock bag to the car passenger and her ensuring throwing of the bag to the floor is of significance. When coupled with other evidence, efforts to destroy evidence are sufficient to justify an arrest.”128 * Officers saw a group of men looking at a TV set sitting in the trunk of a car. When the men saw the officers, they immediately slammed the trunk shut and started walking away.129 ATTEMPT TO HIDE HIMSELF: A suspect’s attempt to hide himself from officers is suspicious (and usually pathetic). Some examples: * On a logical escape route from a robbery that had just occurred, officers saw a car containing four men. As the car passed the patrol car, two of the men ducked down, then “popped their heads up two or three times and then ducked down out of sight.”130 * When officers spotlighted a car full of teenagers at 3:30 a.m, one of them “ducked down in the front seat and put his arm up over his head bringing his jacket with it trying to shield himself from the [officers’] view.”131 * Officers spotted a car in an alley at 3 a.m. When the driver saw the officers, he drove off. As the officers turned around to follow the car, the driver “accelerated his vehicle and made two quick turns and an abrupt stop, hurriedly dousing his auto lights.”132 ATTEMPT TO AVOID OFFICERS: Suspects who know they’ve been spotted by officers will sometimes conclude it’s time to depart. But they don’t want it to look like they’re panicking. So they walk—don’t run.133 Some suspicious examples. * Two suspected drug dealers “looked at the black and white sheriff’s unit the deputies were driving and started walking away in different directions.” 134 * A man standing alone at 4 a.m. next to a business in which a silent alarm had just been triggered began walking away as officers arrived.135 * After engaging in a hand-to-hand transaction that officers reasonably believed was a drug deal, and after observing a police car approaching, the

128 People v. Banks (1990) 217 Cal.App.3d 1358, 1364. 129 People v. Gravatt (1971) 22 Cal.App.3d 133, 137. 130 See People v. Overten (1994) 28 Cal.App.4th 1497, 1504. ALSO SEE U.S. v. Gill (9th Cir. 2002) __F.3d __ [trying to avoid being seen on a surveillance camera]. 131 In re Jonathan M. (1981) 117 Cal.App.3d 530, 535. ALSO SEE People v. Souza (1994) 9 Cal.4th 224, 240. 132 In re Eduardo G. (1980) 108 Cal.App.3d 745, 754 [“(T)his conduct was not consistent with that of a person engaged in innocent activity.”]. 133 See People v. Mims (1992) 9 Cal.App.4th 1244, 1249 [“An inference that an individual is engaging or has just engaged in criminal conduct may be drawn where that individual, knowing that police are approaching, flees or engages in other activity indicative of an effort to avoid apprehension or police conduct.”]. 134 People v. Boissard (1992) 5 Cal.App.4th 972, 975. ALSO SEE Florida v. Rodriguez (1984) 469 US 1, 6; United States v. Brignoni-Ponce (1975) 422 US 873, 885. 135 People v. Lloyd (1992) 4 Cal.App.4th 724, 734; People v. Smith (1981) 120 Cal.App.3d 282, 286.

24 suspect “changed his course of travel and walked away. When the car again neared him, he again altered his course and proceeded in a different direction.136 * “When first observed, appellant appeared headed for a pawnshop area, but on the visible interest of the police in his movements he reversed direction and went into a park.”137 * When an officer approached three suspects, one of them attempted to disassociate himself from the group; i.e., he “dropped back behind [the others] and changed his direction of movement.”138 * “[D]efendants’ starting to walk away from the window as the police car’s lights were turned on would have impelled such questioning as a matter of a policeman’s duty.”139 * After engaging in a hand-to-hand transaction that officers reasonably believed was a drug deal, the suspect, upon looking at the officers, immediately walked up to the porch of a nearby home and knocked on the door.140 * As a murder suspect was driving up to his girlfriend’s house, immediately drove away when he saw officers interviewing her.141 * A suspected drug dealer on an escalator in an airport “turned around and caught sight of the detectives. He attempted to move away, in the words of [one of the detectives], ‘His legs were pumping up and down very fast and not covering much ground, but the legs were as if the person were running in place.”142 * A man carrying a paper bag and standing in front of a dance hall appeared to be showing something inside the bag to several people who had gathered around him. When somebody yelled “roller,” the group immediately dispersed and the man walked into the dance hall.143 FLIGHT: The ultimate suspicious response is flight. To run from officers— whether on foot or in a car—is one of the strongest non-verbal admission of guilt a suspect can make. As the U.S. Supreme Court observed: Headlong flight—wherever it occurs—is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”144 This is also the opinion of the California Supreme Court which said flight may be a “key factor” in determining whether reasonable suspicion or probable cause

136 Flores v. Superior Court (1971) 17 Cal.App.3d 219, 224. 137 People v. Manis (1969) 268 Cal.App.2d 653, 660. 138 People v. Profit (1986) 183 Cal.App.3d 849, 882. 139 People v. Koelzer (1963) 222 Cal.App.2d 20, 26. 140 People v. Mims (1992) 9 Cal.App.4th 1244, 1249 [“(A)ppellant chose as a method of avoid apprehension the pretense of being a resident [of the house].”]. 141 People v. Turnage (1975) 45 Cal.App.3d 201, 205. 142 Florida v. Rodriguez (1984) 469 US 1, 6 [“Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion. . . ”]. 143 People v. Brown (1990) 216 Cal.App.3d 1442, 1450. 144 Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576]. ALSO SEE California v. Hodari (1991) 499 US 621, 623, fn.1 [“The wicked flee when no man pursueth.” Quoting Proverbs 28:1].

25 exist.145 In fact, if officers have grounds to detain a suspect, his act of running from them will ordinarily convert the reasonable suspicion into probable cause.146 As the Court of Appeal observed, “An individual who chooses to run from an officer under suspicious circumstances may by that act provide probable cause to detain or arrest.” 147 Note that if grounds to detain exist, flight may also constitute probable cause to arrest the suspect obstructing officers in the performance of their duties. 148 If grounds to detain do not exist, flight will not automatically justify a detention. But, like furtive gestures, not much more is required. In fact, the courts have coined the term “flight plus” to express the idea that grounds to detain will exist if there is flight plus at least one other suspicious circumstance.149 As the California Supreme Court noted: Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity.150 Here are some examples of additional circumstances which, when combined with flight, were found to constitute reasonable suspicion: * Flight by several occupants of an apartment house known for drug trafficking, together with an anonymous tip of drug dealing.151 * An officer saw two men sitting at a makeshift table in the backyard of a vacant house. The officer saw “what appeared to be narcotics paraphernalia” on the table. Upon spotting the officer, the men scrambled to their feet and ran.152 * Responding to a silent alarm (robbery) at a jewelry store, an officer saw two men about 10 feet from the store walking away from it. One of the men was carrying a large bag over his shoulder. The men “were walking rapidly, with a worried and intent look on their faces” and repeatedly looked back toward the store. They then “broke into a trot,” got into a car and drove off.153

145 People v. Souza (1994) 9 Cal.4th 224, 235. ALSO SEE People v. Mims (1992) 9 Cal.App.4th 1244, 1249 [“An inference that an individual is engaging or has just engaged in criminal conduct may be drawn where that individual, knowing that police are approaching, flees or engages in other activity indicative of an effort to avoid apprehension or police contact.”]. 146 146 See Sibron v. New York (1968) 392 US 40, 66-7; People v. Messervy (1985) 175 Cal.App.3d 243, 247; People v. DeCosse (1986) 183 Cal.App.3d 404, 411; People v. Hill (1974) 12 Cal.3d 731, 749; People v. Guy (1980) 107 Cal.App.3d 593, 598; People v. Bigham (1975) 49 Cal.App.3d 73, 78; People v. Adams (1985) 175 Cal.App.3d 855, 861. 147 People v. Mendoza (1986) 176 Cal.App.3d 1127, 1131. 148 See People v. Allen (1980) 109 Cal.App.3d 981, 987. 149 See People v. Souza (1994) 9 Cal.4th 224, 236; People v. Britton (2001) 91 Cal.App.4th 1112, 1118. 150 People v. Souza (1994) 9 Cal.4th 224, 239. ALSO SEE People v. Turnage (1975) 45 Cal.App.3d 201, 205; In re Rafael V. (1982) 132 Cal.App.3d 977, 983; People v. McGriff (1990) 217 Cal.App.3d 1140, 1144; People v. Mendoza (1986) 176 Cal.App.3d 1127, 1131. 151 See U.S. v. Lane (6th Cir. 1990) 909 F.2d 895. 152 People v. Britton (2001) 91 Cal.App.3d 1112, 1118-9 [“The evasive conduct by two people instead of just one person, we believe, bolsters the reasonableness of the suspicion that there is criminal activity brewing.”]. 153 People v. Dolliver (1986) 181 Cal.App.3d 49.

26 * An officer on patrol at 3:30 a.m. saw two men, both wearing new hats and both with backpacks “stuffed with objects, walking down a street. When they saw the officer they “broke into a run.”154 * In an area where drug sales between buyers in cars and sellers on the streets were common, officers saw several men leaning into two cars that had stopped in the middle of the street. The officers also saw a hand-to-hand exchange between one of the men and one of the cars’ occupants. When the men saw the officers, the drivers of the cars took off and the men ran.155 * Two men arriving on a flight from Miami and exhibiting characteristics of the “drug courier profile” ran when approached by police and DEA agents.156 * At 3 A.M., an officer on patrol in a “high crime” area saw a man standing near a car, talking to the occupants. The car was parked in an area of “almost complete darkness.” When the officer shined his spotlight at the car, the two occupants “bent down toward the floorboard,” and the man “took off running.”157 * At 4 a.m., an officer investigating a report of a prowler in the neighborhood saw a man emerge from a dark area between a home and a plastics company. When the man saw the officer, he ran.158 * Narcotics officers in an area known for “heavy narcotics trafficking” saw a man holding an opaque bag. The man looked in the direction of the officers and immediately ran.159 * While officers (some in uniform) were executing a warrant to search a house for drugs, a man opened the door, looked inside, then ran.160 * A man who approached a stolen Porsche as if to open the door spotted a uniformed deputy and “turned tail and ran.”161 * A man who matched a general description of a burglar who had just broken into a house about a block away ran when he saw an officer.162

Suspicious activity Activity that can fairly be described as “suspicious” is often an important circumstance in establishing reasonable suspicion and probable cause. Although it would be impractical to try to list the various circumstances that qualify as “suspicious,” here are a few that have been noted by the courts: COUNTER SURVEILLANCE: Suspect engaged in counter surveillance driving or other counter surveillance activities.163

154 Crofoot v. Superior Court (1981) 121 Cal.App.3d 717, 724. 155 People v. McGriff (1990) 217 Cal.App.3d 1140, 1144. 156 U.S. v. Haye (4th Cir. 1987) 825 F.2d 32. 157 People v. Souza (1994) 9 Cal.4th 224, 240. 158 People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146. 159 Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570]. 160 People v. Tenney (1972) 25 Cal.App.3d 16, 27. 161 People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609, 615. 162 In re Rafael V. (1982) 132 Cal.App.3d 977, 982-3. 163 See People v. Campbell (1981) 118 Cal.App.3d 588, 597; People v. Rodrigues-Fernandez (1991) 235 Cal.App.3d 543, 547; People v. $497,590 (1997) 58 Cal.App.4th 145, 148 [“(‘Countersurveillance driving’) is a common practice used by drug traffickers to expose and elude following police officers. Such driving tactics typically include driving slowly at less than the

27 TANDEM OR ERRATIC DRIVING: Suspect drove in tandem with other cars or drove erratically.164 Excessive looking around: Although there is nothing inherently suspicious about a person being observant, it might be a suspicious circumstance if it was excessive or unusual, especially when in light of the other circumstances.165 APPARENT CASING: Conduct that is consistent with casing a location for a robbery, burglary or other crime is, of course, highly suspicious.166 UNUSUAL ACTIVITY: A detention may be based, at least in part, on activity “which is so unusual, so far removed from everyday experience that it cries out for investigation,” even if “there is no specific crime to which is seems to relate”; e.g., person at airport pays cash for $2,100 plane tickets, air passenger travels under alias.167 LATE OR UNUSUAL HOUR: Activity occurring late at night or early in the morning may be relevant in establishing reasonable suspicion or probable cause for two reasons. First, like the “high crime area” circumstance, the time at which certain activity takes place may give it meaning. For example, activity that is associated with car thefts may become especially suspicious when it occurs late at night or early in the morning because, as the California Supreme Court pointed out, most car thefts occur between midnight and 6 a.m.168 Second, some activity may be inherently suspicious when it occurs late at night or early in the morning. Examples: * 2:35 a.m.: Officer sees a man “exiting from darkened private property where valuable merchandise was located.”169

flow of traffic, making sudden and unsignaled changes in velocity and direction, as well as running red traffic lights. Each of these tactics is designed to make unobserved surveillance very difficult.”]; People v. McNabb (1991) 228 Cal.App.3d 462, 466; People v. Carvajal (1988) 202 Cal.App.3d 487, 496; U.S. v. Del Vizo (9th Cir. 1990) 918 F.2d 821, 826. 164 See U.S. v. Del Vizo (9th Cir. 1990) 918 F.2d 821, 826 [“(T)andem or erratic driving may be indicative of criminal goings-on.”]. 165 See Flores v. Superior Court (1971) 17 Cal.App.3d 219, 223 [“Those involved in the narcotics trade are a skittish group—literally hunted animals to whom everyone is an enemy until proven to the contrary.”]; People v. Green (1994) 25 Cal.App.4th 1107, 1109, 1111[“looking side to side in a hurried manner”]; People v. Dolliver (1986) 181 Cal.App.3d 49 [suspects leaving a jewelry store after robbing it were repeatedly “looking back toward the jewelry store.”]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1668 [a suspected drug dealer “loitered about and looked furtively in all directions”]; People v. Avalos (1996) 47 Cal.App.4th 1569, 1577 [suspected drug dealer “scouted the area before entering the apartment.”]. 166 See Terry v. Ohio (1968) 392 US 1, 23. 167 See United States v. Sokolow (1989) 490 US 1, 8-10; Florida v. Royer (1983) 460 US 491, 502; People v. Russell (2000) 81 Cal.App.4th 96 [“overwhelmingly strong odor” of air freshener in vehicle was an indication there were drugs in the car]; People v. Dolliver (1986) 181 Cal.App.3d 49; People v. Foranyic (1998) 64 Cal.App.4th 186, 189 [riding around on bicycle with ax]. COMPARE: People v. Verin (1990) 220 Cal.App.3d 551, 558; People v. Gravatt (1971) 22 Cal.App.3d 133, 137. NOTE: Reasonable suspicious does not exist merely because a suspect was “looking suspicious.” See Brown v. Texas (1979) 443 US 47, 52. 168 People v. Souza (1994) 9 Cal.4th 224, 241. 169 See People v. Allen (1975) 50 Cal.App.3d 896, 901. ALSO SEE People v. Schoennauer (1980) 103 Cal.App.3d 398, 407. COMPARE People v. Aldridge (1984) 35 Cal.3d 473, 478 [“(B)eing in the area of a liquor store at 10:15 P.M., possibly carrying alcohol, is neither unusual nor

28 * 3:00 a.m.: Officer sees a man riding a bicycle to which was attached a large ax.170 * 3:00 a.m.: Officer sees five men “on a grassy area abutting a large apartment complex” where “narcotic traffic regularly takes place.”171 * 3:30 a.m.: Two men who were walking in a business area started running when they saw a patrol car approaching.172 * 4:00 a.m.: The suspect was standing alone next to a business in which a silent burglar alarm had been triggered.173 * Midnight: Officer sees two occupied cars parked behind the sheriff’s warehouse; there were no homes or places of business in the area.174

The suspect’s own words Some of the most incriminating evidence that surfaces in a case comes from the suspect’s own mouth. This type of evidence can be divided into seven categories: plain lies, conflicting statement, unbelievable stories, evasive answers, knowing too much, admissions, and confessions. LIES: Because the truth is seldom helpful, it becomes necessary to throw the old bull. Whether this takes the form of spinning, slanting, exaggerating, evading, misleading, or flat-out lying, it tends to result in conflicting statements, unbelievable explanations, and obvious fabrications. As the Court of Appeal observed, “Deliberately false statements to the police about matters that are within an suspect’s knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances.”175 Some examples: suspicious.”]. 170 People v. Foranyic (1998) 64 Cal.App.4th 186, 190 [“No one who has ever worked a graveyard shift can underestimate the significance of any bicycle traffic at that hour (3 A.M.), much less lethally armed bicycle traffic.”]. 171 People v. Holloway (1985) 176 Cal.App.3d 150, 154-5 [“Three A.M. is both a late and unusual hour for anyone to be in attendance at an outdoor social gathering, particularly in a residential neighborhood where he was not reside.”]. 172 Crofoot v. Superior Court (1981) 121 Cal.App.3d 717, 724 [“(T)he fact that the hour of the stop was 3:30 A.M. adds something to the equation.”]. ALSO SEE In re Eduardo G. (1980) 108 Cal.App.3d 745, 754. 173 People v. Lloyd (1992) 4 Cal.App.4th 724, 733-4. 174 People v. Lovejoy (1970) 12 Cal.App.3d 883, 886. 175 People v. Williams (2000) 79 Cal.App.4th 1157, 1167. ALSO SEE People v. Carrillo (1995) 37 Cal.App.4th 1662, 1670 [“Consciousness of guilt is shown by fabrications which, like devious alibis, are apparently motivated by fear of detection, or which, like devious explanations of the possession of stolen goods, suggest that there is no honest explanation for the incriminating circumstances.”]; People v. Memro (1995) 11 Cal.4th 786, 843 [“The police officers’ awareness that defendant had made conflicting statements for which there could be no innocent explanation” was “particularly significant.”]; People v. Warren (1984) 152 Cal.App.3d 991, 997 [“The incredible dialog . . . certainly warranted further investigation.”]; People v. Russell (2000) 81 Cal.App.4th 96; U.S. v. Hill (6th Cir. 1999) 195 F.3d 258, 272; People v. Shandloff (1985) 170 Cal.App.3d 372, 382; People v. Harris (1980) 105 Cal.App.3d 204, 212-3; People v. Davis (1981) 29 Cal.3d 814, 823; People v. Lewis (1980) 109 Cal.App.3d 599, 608; People v. York (1980) 108 Cal.App.3d 779, 785; People v. Flores (1974) 12 Cal.3d 85; U.S. v. Koshnevis (9th Cir. 1992) 979 F.2d 691, 695; People v. Campbell (1981) 118 Cal.App.3d 588, 597; People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189;

29 * Suspect caught in lie about where he was coming from.176 * Suspect gave a false name or DOB.177 * Suspect was using an alias.178 * Suspect lied about having no ID in his possession.179 * Suspect denied owning a car that was registered to him.180 * Suspect gave conflicting statements as to who owned property in his possession.181 CONFLICTING STATEMENTS: The fact that the suspect made a statement that conflicts with something he said earlier does not necessarily prove the suspect is lying. Conflicts are sometimes innocent or immaterial. If, however, the conflict pertains to the suspect’s guilt and does not appear to have been the result of an innocent mistake, it is regarded as highly suspicious. For example, in People v. Memro the court said that a murder suspect’s “patently inconsistent statements on such a vital matter as the whereabouts of [the victim] near the time he vanished had no discernible innocent meaning and strongly indicated consciousness of guilt.”182 It is also highly suspicious when a suspect’s statement materially conflicts with that of a suspected accomplice,183 or with the statement of an independent witness who has no apparent reason to lie.184 UNBELIEVABLE STORIES: Although not a provable lie, a story may be highly suspicious because it just doesn’t make sense or it doesn’t fit with the known facts. Examples: Dubious stories are usually dubious because they are lies. Consequently, implausible stories, such as the following, are highly suspicious: * Suspect claimed he had been jogging when detained, “but that did not coincide with the facts—not perspiring, breathing hard, or with a rapid pulse.”185

U.S. v. Ayon-Meza (9th Cir. 1999) 177 F.3d 1130, 1133. 176 See People v. Suennen (1980) 114 Cal.App.3d 192, 199; People v. Hart (1999) 74 Cal.App.4th 479, 491; People v. Juarez (1973) 35 Cal.App.3d 631, 635; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 153; People v. Harris (1980) 105 Cal.App.3d 204, 212-3. 177 People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 97 [“The fact that at least two of the four suspects gave false names to the officer connoted consciousness of guilt.”]; People v. Boissard (1992) 5 Cal.App.4th 972, 979; People v. Turner (1994) 8 Cal.4th 137, 186; Florida v. Rodriguez (1984) 496 US 1, 6; Hill v. California (1971) 401 US 797, 803. 178 See United States v. Sokolow (1989) 490 US 1, 9; Florida v. Royer (1983) 460 US 491, 502; People v. Profit (1996) 183 Cal.App.3d 849, 882; People v. Daugherty (1996) 50 Cal.App.4th 275, 286. 179 See People v. Daugherty (1996) 50 Cal.App.4th 275, 286; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Adams (1985) 175 Cal.App.3d 855, 861. 180 People v. Carrillo (1995) 37 Cal.App.4th 1662, 1668-71 [“When a suspect makes false statements for the purpose of misleading or warding off suspicion, though these acts are by no means conclusive of guilt, they may strengthen the inference arising from other facts.”]. 181 See People v. Gravatt (1971) 22 Cal.App.3d 133, 137; People v. Garcia (1981) 121 Cal.App.3d 239, 246. 182 (1995) 11 Cal.4th 786, 843. ALSO SEE People v. Gravatt (1971) 2 Cal.App.3d 133, 137; People v. Shandloff (1985) 170 Cal.App.3d 372, 382. 183 See People v. Garcia (1981) 121 Cal.App.3d 239, 246. 184 See People v. Davis (1981) 29 Cal.3d 814, 823. 185 People v. Fields (1984) 159 Cal.App.3d 555, 564. ALSO SEE People v. Brown (1985) 169 Cal.App.3d 159, 162.

30 * Suspect said she was waiting for a friend but she didn’t know the friend’s name.186 * Burglary suspect told officers he didn’t live in the area; he said he was walking home but he was walking in the wrong direction.187 * A man suspected of being under the influence of drugs said the odor coming from his car was from a cough drop, but the odor was so “overwhelming” it could only have come from an immense cough drop.188 * An LAPD officer spotted a man carring some fishing equipment that the officer believed might have been stolen. The officer asked the man if his equipment was “any good.” The man responded, “No, they’re just cheap old things. I think I paid $25 or $30 for them.” The officer, an avid fisherman, was aware the equipment was very high-quality and very expensive.189 VAGUE, EVASIVE ANSWERS: Suspicion may focus on a suspect because, although he technically provides answers the officer’s questions, the answers are vague or evasive.190 KNOWING TOO MUCH: This is a favorite of mystery writers: The suspect volunteers some information that he could know only if he was the killer, robber, or whatever. But it sometimes happens in real life. For example, in People v. Spears191 the defendant, an employee of a Chili’s restaurant in San Jose, shot and killed his boss in the manager’s office before the restaurant opened for the day. The motive was robbery. After going home for a short while, Spears returned to the restaurant and joined the other employees who were waiting outside, They told Spears they were worried because the manager, whose car was parked in the lot, was not answering the door. Eventually, Spears and another employee found a way inside and located the manager’s body in a pool of blood in his office. At this point, Spears exclaimed, “He’s been shot.” Although he had, in fact, been shot in the head three times, it was not apparent because of the extensive damage to victim’s skull. When detectives later questioned him about this, he couldn’t explain why he said it. All of this was later used to help establish probable cause for a search warrant. Commenting on this piece of evidence, the court said, “Even though the cause of death was not readily apparent, appellant exclaimed that the victim had been shot. He could give no credible explanation for this statement.” ADMISSIONS: A suspect will sometimes say something that is obviously incriminating or becomes so in light of the surrounding circumstances. Examples: * Suspect told an informant that “he could do a small thing of boy (sell a small amount of heroin).”192

186 See People v. Harris (1980) 105 Cal.App.3d 204, 212-3. 187 See People v. Juarez (1973) 35 Cal.App.3d 631, 635. 188 See People v. Russell (2000) 81 Cal.App.4th 96, 102-3. 189 See People v. Warren (1984) 152 Cal.App.3d 991, 997. ALSO SEE U.S. v. Summers (9th Cir. 2002) 268 F.3d 683, 687. 190 See People v. Adams (1985) 175 Cal.App.3d 855, 861 [“Suspect “gave vague and evasive answers regarding his identity.”]. 191 (1991) 228 Cal.App.3d 1. 192 People v. Veasey (1979) 98 Cal.App.3d 779, 784-5. ALSO SEE People v. Sanchez (1981) 116 Cal.App.3d 720, 727 [suspect said he had “plenty” of heroin].

31 * An undercover officer who was investigating a tip that the suspect was engaged in bookmaking in his apartment, phoned the suspect; in the background he heard two men talking about point spreads for professional football games.193 * When an officer arrived at the suspect’s home to discuss graffiti vandalism, the suspect said, “Take me to jail.”194 * As an officer approached two burglary suspects, one of them said, “I told you not to do it.”195 * When an officer detained a suspected prowler the suspect said, “I’m not prowling. I’m just lost,” “I’ve been in trouble in Arizona for burglary,” and “I just got out of jail in Long Beach for prowling.”196

Suspect’s location The suspect’s presence at a certain location will sometimes generate suspicion, as when he is observed near the scene of a crime that just occurred. In most cases, however, mere presence in the vicinity is not enough to detain or arrest—a little more is required. NEAR CRIME SCENE: In “just occurred” crimes, such as robbery, burglary, and assaults, the suspect’s presence near the crime scene shortly after the crime occurred is an important circumstance, especially if there were few if any other people in the vicinity.197 The following are examples of circumstances that justified a detention or arrest: * At 3 A.M., an officer was dispatched to a “burglary in progress.” No suspect or vehicle description was given. Less than two minutes later, the officer saw a car leaving the area of the burglary. “There was no other traffic, and he did not see anyone on foot in the area.”198 * Suspect “was the only pedestrian in the vicinity of the burglary” that had occurred 10 minutes before he was spotted by the officer; plus, the suspect’s explanation of why he was in the neighborhood had “doubtful veracity.”199 * At 12:45 A.M., police radio reported that a man had just been shot and killed on a street corner. The killer was described by age, race, height, build, and

193 People v. Rooney (1985) 175 Cal.App.3d 634, 648. 194 In re Trinidad V. (1989) 212 Cal.App.3d 1077, 1080 [“The minor’s statement ‘take me to jail’ could reasonably be interpreted as an admission of guilt.”]. 195 People v. Stokes (1990) 224 Cal.App.3d 715, 721. 196 People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 150-2. 197 169 See People v. Jones (1981) 126 Cal.App.3d 308, 314; People v. Anthony (1970) 7 Cal.App.3d 751, 761; People v. Harris (1980) 105 Cal.App.3d 204, 212; People v. Natale (1978) 77 Cal.App.3d 568, 573; People v. McCluskey (1981) 125 Cal.App.3d 220, 223; People v. Rico (1979) 97 Cal.App.3d 124, 128; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1092; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 153; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; People v. Joines (1970) 11 Cal.App.3d 259, 263; In re Louis F. (1978) 85 Cal.App.3d 611, 616; People v. Rivera (1992) 8 Cal.App.4th 1000, 1009; People v. Boissard (1992) 5 Cal.App.4th 972, 980; People v. Wright (1990) 52 Cal.3d 367, 392; People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674; People v. York (1980) 108 Cal.App.3d 779, 785; In re Carlos M. (1990) 230 Cal.App.3d 372, 382; People v. Dolliver (1986) 181 Cal.App.3d 49, 55. 198 See People v. Conway (1994) 25 Cal.App.4th 385, 390. 199 See People v. Juarez (1973) 35 Cal.App.3d 631, 635.

32 that he was wearing a dark jacket. About two blocks from the intersection, an officer detained a man who matched that description.200 * Suspect was arrested near the scene of a purse snatch in the company of a person who had been ID’d as one of the two perpetrators; suspect’s physical and clothing description was consistent with that of the second perpetrator.201 * Within minutes after receiving a report of reckless motorcycle driving, the officer arrived at the scene; the only person riding a motorcycle in the area was the suspect.202 * At 2 A.M., the suspect was seen driving by a home that was burglarized later that morning, plus his fingerprint was found at the point of entry. He was arrested.203 * Officer knew that the suspect was with the victim at about the time she was murdered; plus, contrary to the suspect’s statement, witnesses reported he had been arguing with the victim just before she was killed.204 * At 4:45 A.M., within four or five minutes after a report that a “cat burglary” had just occurred, officers were at an intersection a few blocks away when they saw a yellow van driving away from the location of the crime. A yellow van had reportedly been used in other cat burglaries in the vicinity; plus the race of the driver of the van was the same as the race of the perpetrator of the other burglaries.205 ACTUAL ESCAPE ROUTE: If witnesses reported seeing the perpetrator fleeing on a certain street, reasonable suspicion and probable cause may be based in part on the fact that the suspect was observed on the street at a location not inconsistent with flight from the crime scene.206 LOGICAL ESCAPE ROUTE: When officers hear a report of a “just occurred” crime they will sometimes have a fairly good idea of what walkways, streets, or freeways the perpetrator will likely take. If an officer is watching a logical escape route and sees a person or vehicle that, for any number of reasons, appears suspicious, a detention or arrest may be justified. This occurred, for example, in a case in which an officer “postulated the theory that the gang members who committed the homicide had abandoned the car and were proceeding back to their home turf on foot via a particular route.” 207 Some other examples:

200 See People v. Atmore (1970) 13 Cal.App.3d 244, 246. 201 See People v. Bowen (1987) 195 Cal.App.3d 269, 274. 202 See In re Frank V. (1991) 233 Cal.App.3d 1232, 1238, fn.2. 203 See People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 163, 166. 204 People v. Davis (1981) 29 Cal.3d 814, 823. 205 People v. Taylor (1975) 46 Cal.App.3d 513, 520 [“It is manifest that the appearance of defendant in the yellow van in such close proximity in time and space to the cat burglary . . . the direction of movement of the van, and the sex and race of the defendant” provided grounds to detain the driver.]. 206 See In re Louis F. (1978) 85 Cal.App.3d 611. 207 See People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 96 [“[The officer] postulated the theory that the gang members who committed the homicide had abandoned the car and were proceeding back to their home turf on foot via a particular route.”]; People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 153; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1092; People v. Huff (1978) 83 Cal.App.3d 549, 554.

33 * At about 8 P.M., two men robbed a motel in Coronado which is an island with only two bridges. Police radio broadcast a very general description of the suspects. No vehicle description was given. Within minutes, an officer at one of the bridges saw a car occupied by two men who matched the general description. Two other men in the car ducked down when the officer started following them.208 * After receiving a report that a liquor store had just been robbed, officers “proceeded to a nearby intersection, a vantage point which permitted them to survey the street leading from the crime scene to a freeway entrance, a logical escape route.” The officers then saw two men in a car who fit the description of the robbers. No other cars were in the area, the suspects were “excessively attentive to the officers,” they made furtive gestures, and the car was speeding.209 * At about 3 A.M., within a few minutes after a gas station was robbed, the suspect was spotted in a car “in the immediate vicinity,” “traveling away from the scene of the crime on a likely escape route;” plus the suspect’s car was “the only one on the streets.”210 Note that in “logical escape route” situations, officers may, absent persuasive evidence to the contrary, infer that the perpetrator of a crime used a car to make his getaway even if witnesses did not see a car.211 Similarly, absent persuasive evidence to the contrary, officers may usually infer the perpetrator of a crime had an accomplice drive the getaway car even if witnesses did not see an accomplice.212 WITHIN PERIMETER: Grounds to detain a suspect based solely on his presence with a police perimeter may exist if the circumstances under which the perimeter was set up (such as the time of night, number of people outside) made it reasonably likely the perpetrator would be the only person— or at least one of the few people—inside the perimeter.213 Otherwise, grounds to detain or arrest will require something more, such as a physical description match or similarity, furtive gestures, hiding, no reasonable explanation for being where he was found. HIGH CRIME AREA: The fact that a suspect was present in a so-called “high crime area” will not justify a detention or arrest.214 It is, however, a

208 People v. Overten (1994) 28 Cal.App.4th 1497, 1505. 209 See People v. Joines (1970) 11 Cal.App.3d 259, 262-5. 210 See People v. Anthony (1970) 7 Cal.App.3d 751, 761. 211 See People v. Overten (1994) 28 Cal.App.4th 1497, 1505; People v. Joines (1970) 11 Cal.App.3d 259, 263. 212 See People v. Anthony (1970) 7 Cal.App.3d 751, 761 [“(It is a) well-known fact that automobiles are frequently a facility for the perpetration of crime and an aid in the escape of criminals.”]; People v. Joines (1970) 11 Cal.App.3d 259, 263; People v. Conway (1994) 25 Cal.App.4th 385, 390. ALSO SEE: People v. Chandler (1968) 262 Cal.App.2d 350, 354 [“It is common knowledge that frequently, perhaps more often than not, where an automobile is used as a robbery getaway car, one or more persons remain in the vehicle.”]. 213 See People v. Rivera (1992) 8 Cal.App.4th 1000, 1009-10. 214 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576 [“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”]; Maryland v. Buie (1990) 494 US 325, 334, fn.2 [“Even in high crime areas, where the possibility that any given individual is

34 circumstance that is properly considered215—especially if the suspect was engaging in conduct commonly associated with the type of criminal activity prevalent in the area.216 In other words, the crime problems in the area where the suspect was detained or arrested “can lend meaning” to a suspect’s conduct.217 As the California Supreme Court observed, “An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.”218 For example, in discussing the level of suspicion generate by a hand-to-hand exchange, the court in Flores v. Superior Court pointed out: [T]o the trained officer seeing someone pass a transparent bag containing a leafy substance to another and receive money in exchange is to be judged in the environment in which the transaction took place. Seeing that transaction take place in an area of known narcotics activity is a suspicious circumstance. Seeing the same transaction take place on

armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”]; People v. Holloway (1985) 176 Cal.App.3d 150, 155 [“It is true, unfortunately, that today it may be fairly said that our entire nation is a high crime area where narcotic activity is prevalent. Therefore, such factors, standing alone, are not sufficient to justify interference with an otherwise innocent-appearing citizen.”]; People v. Verin (1990) 220 Cal.App.3d 551, 558. 215 See Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570, 576] [“(T)he fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis.”]; People v. Nonnette (1990) 221 Cal.App.3d 659, 668. NOTE: In the Rose Bird era, the “high crime area” factor was considered virtually irrelevant. See, for example, People v. Loewen (1983) 35 Cal.3d 117, 124; People v. Bower (1979) 24 Cal.3d 638, 646, fn.8. This is no longer true. See People v. Souza (1994) 9 Cal.4th 224, 240-1; In re Frederick B. (1987) 192 Cal.App.3d 79, 86; People v. Holloway (1985) 176 Cal.App.3d 150, 155 [“(I)t would be the height of naiveté not to recognize that the frequency and intensity of these sorry conditions [crime problems] are greater in certain quarters than in others. Consequently, we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surrounds and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.”]. 216 See In re Frederick B. (1987) 192 Cal.App.3d 79, 86; People v. Manis (1969) 268 Cal.App.2d 653, 660. 217 See United States v. Cortez (1981) 449 US 411, 419; People v. Limon (1993) 17 Cal.App.4th 524, 532; People v. Schoennauer (1980) 103 Cal.App.3d 398, 408; People v. Maltz (1971) 14 Cal.App.3d 381, 391; People v. McGriff (1990) 217 Cal.App.3d 1140, 1144; People v. Garcia (1981) 121 Cal.App.3d 239, 245; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742; People v. Banks (1990) 217 Cal.App.3d 1358, 1364; In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [“That an area involved increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dangerous.”]. ALSO SEE People v. King (1989) 216 Cal.App.3d 1237, 1241 [“(T)he fact that an area involves increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dangerous. While this factor alone may not justify a weapon search, combined with additional factors it may.”]; In re Stephen L. (1994) 162 Cal.App.3d 257, 260 [“Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity usage is known from the officers’ past experience would be most careless.”]. 218 People v. Souza (1994) 9 Cal.4th 224, 240. ALSO SEE People v. Garcia (1981) 121 Cal.App.3d 239, 245 [“(T)he character of the area in terms of the officer’s familiarity with activities there and the right time factor combine to provide the environment in which conduct of the defendant must be judged.”].

35 the floor of a Chicago Grain Exchange would probably (and hopefully) be meaningless.219 Similarly, a suspect’s act of peering into parked cars in an alley would appear even more suspicious if the alley was frequently the site of auto burglaries or car thefts.220

Tips from informants Probable cause and reasonable suspicion may be based solely, or in part, on information from people other than officers. There are three categories of civilians who furnish such information: citizen informants, tested police informants, and untested police informants. The extent to which their information will justify a detention, arrest, or search will depend on whether there is reason to believe the information or its source was reliable. CITIZEN INFORMANTS: So-called “citizen informants” are presumed reliable if their information was based on their personal knowledge. A person will ordinarily be deemed a citizen informant if, (1) he was crime victim or eyewitness who simply reported his observations to the police; and (2) officers were aware of his name.221 In some cases, a detention or arrest will be based on information from a person who phones the police department, as when a caller reports a prowler in the neighborhood. When this happens, it is essential that dispatchers—as a matter of routine—notify officers whether or not the caller identified himself. Although the caller’s name need not be broadcast to the responding officers, they need to know whether the source was a citizen informant so they will know that

219 (1971) 17 Cal.App.3d 219, 223. ALSO SEE People v. Mims (1992) 9 Cal.Ap.4th 1244, 1248; People v. Handy (1971) 16 Cal.App.3d 858, 861. 220 See In re Michael S. (1983) 141 Cal.App.3d 814, 816. 221 See Illinois v. Gates (1983) 462 US 213, 233-4; Florida v. J.L. (2000) 529 US __ [146 L.Ed.2d 254, 260]; People v. Boissard (1992) 5 Cal.App.4th 972, 979; Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504; People v. Kershaw (1983) 147 Cal.App.3d 750, 755; People v. Smith (1976) 17 Cal.3d 845, 852; People v. Hogan (1969) 71 Cal.2d 888, 890-1 [rape victim]; People v. Rigsby (1971) 18 Cal.App.3d 38, 42 [rape victim]; People v. Paris (1975) 48 Cal.App.3d 766, 773-4 [telephone company installer who saw drugs in a residence]; People v. Schulle (1975) 51 Cal.App.3d 809, 815 [woman who reported her parents were regularly using marijuana]; People v. Terrones (1989) 212 Cal.App.3d 139, 147-9 [neighbor reported seeing drug activity outside a residence]; People v. Ramey (1976) 16 Cal.3d 263 [burglary victim]; People v. Mardian (1975) 47 Cal.App.3d 16 [baby sitter who reported seeing drugs in defendant’s house]; People v. Chavez (1969) 275 Cal.App.2d 54 [man who reported seeing a man attempt to sell drugs];People v. Lombera (1989) 210 Cal.App.3d 29, 32; People v. Abbott (1970) 3 Cal.App.3d 966, 970; Burke v. Superior Court (1974) 39 Cal.App.3d 28, 33-4; Caligari v. Superior Court (1979) 98 Cal.App.3d 725, 733, fn.1; People v. Baker (1970) 12 Cal.App.3d 826, 841 [bowling alley manager told officers he saw a gun in a locker]. NOTE: Knowing the identity of the citizen informant, or being able to obtain the citizen informant’s identity is important because the reliability of citizen informants is based, at least in part, on the fact that they knew they might face criminal prosecution for knowingly furnishing false information. See People v. Kershaw (1983) 147 Cal.App.3d 750, 756; Ming v. Superior Court (1970) 13 Cal.App.3d 206, 213; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504; Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 938; People v. Prewitt (1959) 52 Cal.2d 330, 337 [“Admittedly, an informer’s failure or refusal to identify himself may cast doubt on the reliability of his information . . . “]; People v. Superior Court (Meyer) (1981) 118 Cal.App.3d 579, 584.

36 their options may include detaining a suspect based solely on the caller’s information. TESTED POLICE INFORMANTS: A tested police informant, also known as a “confidential reliable informant” or CRI, is an informant who has established a record for furnishing reliable information. Consequently, information from a tested informant may be used to establish reasonable suspicion or probable cause if the information was based on the informant’s personal knowledge.222 An informant may be deemed “tested” if he furnished information to officers on one or more occasions, he had never furnished false information, 223 and the information was determined to be accurate. In most cases, accuracy will be established if the information led to one or more convictions, holding orders, indictments, or arrests;224 led to the issuance of a search warrant, especially if the warrant was productive.225

222 See People v. Cedeno (1963) 218 Cal.App.2d 213, 219 [“(A)n arrest and search may be made solely on the basis of information received from a single reliable informant.”]; Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 519; People v. Hutchins (1979) 100 Cal.App.3d 406, 412; People v. Lara (1967) 67 Cal.2d 365, 374; People v. De Santiago (1969) 71 Cal.2d 18, 21-2; People v. Love (1970) 8 Cal.App.3d 23, 27 [“Probable cause for an arrest may consist of information obtained from an undisclosed informer of known reliability.”]; People v. Prewitt (1959) 52 Cal.2d 330, 337; People v. Meyers (1970) 6 Cal.App.3d 601, 606; People v. Terrones (1989) 212 Cal.App.3d 139, 146; People v. Barger (1974) 40 Cal.App.3d 662, 667; People v. Stewart (1983) 140 Cal.App.3d 11, 15; People v. Mayer (1987) 188 Cal.App.3d 1101, 1117. COMPARE: Wong Sun v. United States (1963) 371 US 471, 480. NOTE: The informant’s information need not have been provided directly to the arresting officer or search warrant affiant; it is sufficient that the information concerning an informant’s reliability was passed along by the officers who confirmed its accuracy to the officers who later relied upon it. See People v. Mayer (1987) 188 Cal.App.3d 1101, 1117; People v. Lopez (1986) 181 Cal.App.3d 842, 845. NOTE: Although proof of personal knowledge is not an absolute requirement, it is “highly relevant.” See Illinois v. Gates (1983) 462 US 213, People v. Aho (1985) 166 Cal.App.3d 984, 990. 223 See People v. Gray (1976) 63 Cal.App.3d 282, 288; People v. Berkoff (1985) 174 Cal.App.3d 305, 309; People v. Barger (1974) 40 Cal.App.3d 662, 667-8; People v. Love (1970) 8 Cal.App.3d 23, 27 [information provided twice]; People v. Hansborough (1988) 199 Cal.App.3d 579, 584 [information provided twice]; People v. Prewitt (1959) 52 Cal.2d 330 [information provided twice]; People v. Dumas (1973) 9 Cal.3d 871, 876 [information provided three times]; People v. Neusom (1977) 76 Cal.App.3d 534, 537 [information provided five times]; People v. Mayer (1987) 188 Cal.App.3d 1101, 1117 [information provided 10 times]; People v. McFadin (1982) 127 Cal.App.3d 751, 764 [information provided 12 times]. ALSO SEE Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 946 (conc. opn. of Crosby, J.) [“There are few principles of human affairs more self-evident than this: The unverified story of an untested informer is of no more moment than a fairy tale on the lips of a child . . . ”]. 224 See People v. Gray (1976) 63 Cal.App.3d 282, 288; People v. Mayer (1987) 188 Cal.App.3d 1101, 1117; People v. Dumas (1973) 9 Cal.3d 871, 876; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 714; People v. Hill (1970) 3 Cal.App.3d 294, 298; People v. Lopez (1986) 181 Cal.App.3d 842, 844-5; People v. Hansborough (1988) 199 Cal.App.3d 579, 584; People v. Murphy (1974) 42 Cal.App.3d 81, 87. NOTE: When the informant’s information is used to obtain a search warrant, the affidavit should contain as many details as possible about the informant’s track record but officers may omit details that would tend to reveal the informant’s identity. See Swanson v. Superior Court (1989) 211 Cal.App.3d 332, 338; U.S. v. Taylor (1st Cir. 1993) 985 F.2d 3, 5-6. Furthermore, an affidavit must include all material information known to the affiant that raises doubts about an informant’s reliability. See People v. Kurland (1980) 28 Cal.3d 376, 384-5; People v. Flores (1982) 128 Cal.App.3d 512, 519; People v. Lopez (1985) 173 Cal.App.3d 125, 133-4; Franks v. Delaware (1978) 438 US 154. 225 See People v. Murphy (1974) 42 Cal.App.3d 81, 87-8; People v. Love (1985) 168 Cal.App.3d

37 Untested police informants: If officers cannot demonstrate that a police informant has a good track record of providing accurate information, it may be possible to prove that the information furnished on this particular occasion was accurate. This may be accomplished by corroborating all or part of the information. The theory here is that if some “innocent” information is corroborated it may be reasonable to believe the other information furnished by the informant is also accurate.226 As a practical matter, information from untested police informants is used mainly in search warrants, not as grounds to detain or arrest.

Other circumstances The following circumstances are also relevant—often highly relevant—in determining the existence of reasonable suspicion and probable cause: MOTIVE: Although motive would be relevant in most crimes, as a practical matter it is significant mainly in murder cases and other crimes of violence, including arson and terrorism.227 Rap sheet ARREST RECORD: The fact that the suspect had been arrested or convicted of a crime in the past is a factor that may be considered, especially if the suspect was arrested for, or convicted of, committing the same type of crime for which he is currently under investigation.228 Examples: * A man suspected of operating a methamphetamine lab had been convicted of manufacturing methamphetamine.229

104, 106; People v. Hansborough (1988) 199 Cal.App.3d 579, 582. NOTE: An informant does not automatically become unreliable because he furnished information that led to an unproductive warrant. This is because “an informant can only describe past circumstances which would lead a reasonable person to believe narcotics presently may be found at a particular place. Circumstances change: narcotics dealers move about, sell and use up their narcotics supplies, or they cache them in new places.” People v. Murphy (1974) 42 Cal.App.3d 81, 87. 226 NOTE: The fact that officers determined that some of the informant’s information was not accurate does not necessarily mean the informant was unreliable. See Illinois v. Gates (1983) 462 US 213, 245, fn.14. 227 See People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674; People v. Turnage (1975) 45 Cal.App.3d 201, 205; People v. Morgan (1989) 207 Cal.App.3d 1384, 1389; People v. Superior Court (Orozco) (1981) 121 Cal.App.3d 395, 404; People v. Kaurish (1990) 52 Cal.3d 648, 676; People v. Davis (1981) 29 Cal.3d 814, 823; People v. Barnum (1980) 113 Cal.App.3d 340, 346; United States v. Knights (2001) __ US __.ALSO SEE CALJIC 2.51 [“. . . Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence. . . .”]. 228 See Brinegar v. United States (1949) 338 US 160, 172; People v. Aho (1985) 166 Cal.App.3d 984, 992 [“The defendant’s arrest and conviction record is no less relevant under the totality-of- the-circumstances test.”]; People v. Martin (1973) 9 Cal.3d 687, 692; Ramey v. Murphy (1985) 165 Cal.App.3d 502, 510 [“In determining whether there was reasonable cause for arrest without warrant, police officers are justified in taking into account past conduct, character and reputation of the person suspected.”]. ALSO SEE United States v. Harris (1971) 403 US 573, 582-3 [officers may also consider the suspect’s reputation]. 229 People v. Wilson (1986) 182 Cal.App.3d 742, 754. ALSO SEE People v. Sanchez (1972) 24 Cal.App.3d 664, 676; People v. Aho (1985) 166 Cal.App.3d 984, 992 [“Under California law, a suspect’s narcotic arrest record always has been considered relevant to the magistrate’s determination of probable cause.”].

38 * A man suspected of engaging in a hand-to-hand drug sale had been arrested a month earlier for sale of narcotics.230 * A man suspected of murdering two young boys “had a record for physical abuse of a nine-year old.”231 * A man suspected of burglary “had been arrested for burglary previously.”232 * A man suspected of robbery “was a known burglar.”233 * A man suspected of possessing stolen property was an ex-convict, “having just got out for armed robbery.”234 * A man suspected of possessing stolen property “had been active as a receiver of stolen property.”235 * A search warrant affidavit “established a good likelihood that both defendants had been involved in drug transactions in the past.”236 * A suspected burglar “had been released from jail a few weeks before for prowling.”237 * A man suspected of murdering and sexually assaulting a 15-year old girl “had a prior record of conviction for forcible rape.”238 POSSESSION OF FRUITS OR INSTRUMENTALITIES: Probable cause to arrest is often based, at least in part, on the fact the suspect was in possession of items that are commonly used to commit the crime for which he is suspected, or items that are commonly stolen in such crimes. Examples: * Two suspected burglars were carrying pillowcases filled with items such as cassette recorders, a clock-radio, binoculars, an electric fan.239 * Two men suspected in a string of recent pillowcase burglaries was in possession of a half-filled “closed” pillowcase filled with hard objects, gloves, flashlights, and screwdrivers.240 * One of two men suspected of possessing drugs was carrying a “big stack or wad of bills.”241

230 People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743. ALSO SEE People v. Thomas (1980) 112 Cal.App.3d 980, 984; People v. LeBlanc (1997) 60 Cal.App.4th 157, 166; People v. Lim (2000) 85 Cal.App.4th 1289, 1298 [even “stale” arrest information is somewhat relevant]; People v. Kershaw (1983) 147 Cal.App.3d 750, 760; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1505. 231 People v. Memro (1995) 11 Cal.4th 786, 843. 232 People v. Stokes (1990) 224 Cal.App.3d 715, 721. ALSO SEE People v. Price (1991) 1 Cal.4th 324, 410; People v. Rooney (1985) 175 Cal.App.3d 634, 648; People v. Mayer (1987) 188 Cal.App.3d 1101, 1119; People v. Methey (1991) 227 Cal.App.3d 349, 358. 233 People v. Franklin (1985) 171 Cal.App.3d 627, 631. 234 People v. Gravatt (1971) 22 Cal.App.3d 133, 137. 235 People v. Martin (1973) 9 Cal.3d 687, 693. 236 People v. Mikesell (1996) 46 Cal.App.4th 1711, 1717. 237 People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 153. 238 People v. Hillery (1967) 65 Cal.2d 795, 804. 239 People v. Valdez (1983) 138 Cal.App.3d 995, 1001 [“When the police officers’ observations of the contents of the pillowcases is added to the totality of information previously available to them, we find [probable cause to arrest].”]. ALSO SEE People v. Stevens (1974) 38 Cal.App.3d 66, 70; People v. Schoennauer (1980) 103 Cal.App.3d 398, 410. 240 People v. Suennen (1980) 114 Cal.App.3d 192, 197-9. 241 People v. Brueckner (1990) 223 Cal.App.3d 1500, 1505.

39 * Inside the car occupied by two suspects in a liquor store robbery that had just occurred, officers saw currency, money orders, and a bottle of brandy.242 * Inside the car occupied by two suspects in robbery of a market that had just occurred, officers saw live shotgun shells and a ski mask.243 * Inside the van of a man suspected of having just committed a cat burglary, officers found a furniture dolly, a stereo, a knife, screwdriver, flashlight, and gloves.244 * A man suspected of having just committed a burglary was carrying a screwdriver and a VCR wrapped in a blanket.245 * Inside a car occupied by two suspects in a shooting were a .22 automatic rifle, a box of ammunition, expended shell casings, and there was a rifle butt sticking out from under the driver’s seat.246 * A man suspected of having just committed a robbery in which a .38 caliber revolver was used was in possession of .38 caliber bullets.247 IN THE COMPANY OF PERPETRATOR: If there were two or more perpetrators, a positive ID of one suspect made shortly after the crime was committed may provide probable cause to arrest the suspect’s companions.248 ARREST WARRANT LINK TO CAR: Reasonable suspicion to stop a car and detain the occupants exists if the car was registered to, or was otherwise linked to, a person for whom an arrest warrant was outstanding. The purpose of such a detention is to determine if any of the occupants are the fugitive or whether they know the fugitive’s whereabouts.249 PROFILES: Combinations of circumstances that officers, from experience, have determined are consistent with a certain type of criminal activity may be considered, but such circumstances do not gain added significance merely because they have been incorporated into a “profile.”250 PEN REGISTERS, PHONE TRAPS, TELEPHONE RECORDS: Reasonable suspicion and probable cause may be based in part on information that telephone calls were made or received on a certain phone, or that such calls were made or

242 People v. Smith (1970) 4 Cal.App.3d 41, 44-5. ALSO SEE People v. Hagen (1970) 6 Cal.App.3d 35, 43. 243 People v. Jardine (1981) 116 Cal.App.3d 907, 913. 244 People v. Taylor (1975) 46 Cal.App.3d 513, 518. 245 People v. Stokes (1990) 224 Cal.App.3d 715, 721. 246 People v. Rico (1979) 97 Cal.App.3d 124, 133. ALSO SEE People v. Superior Court (Orozco) (1981) 121 Cal.App.3d 395, 404. 247 People v. Anthony (1970) 7 Cal.App.3d 751, 763. 248 See People v. Craig (1978) 86 Cal.App.3d 905; People v. Bowen (1987) 195 Cal.App.3d 269; People v. Fourshey (1974) 38 Cal.App.3d 426, 430. 249 See People v. Dominguez (1987) 194 Cal.App.3d 1315; In re William J. (1985) 171 Cal.App.3d 72, 77 [court refuses to adopt a rule permitting a car stop only if the suspect was the driver—“If we were to adopt such an untenable rule, then legions of criminals throughout the land could hire drivers, who are upstanding citizens with no past criminal involvement, to chauffeur them around our streets and highway sin open, notorious view. As smug passengers they could wave to the police who could only watch in frustration as they passed by.”]. 250 See United States v. Sokolow (1989) 490 US 1, 10; Reid v. Georgia (1980) 448 US 438; People v. Russell (2000) 81 Cal.App.4th 96; People v. Shandloff (1985) 170 Cal.App.3d 372, 381-2.

40 received on a certain date and time.251 FINGERPRINTS: The fact that a suspect’s fingerprints were found in a certain place or on a certain thing is often highly relevant in establishing probable cause.252 In the words of the Court of Appeal, “Fingerprint evidence is the strongest evidence of identity and is sufficient by itself to constitute probable cause for arrest.”253 HANDWRITING, GRAFFITI ANALYSIS: Both are recognized as reliable methods of determining who wrote a certain document or vandalized property by way of graffiti.254 BLOODSTAINS: There were bloodstains on the suspect’s clothing.255 REFUSAL TO COOPERATE: A suspect’s refusal to talk to officers who want to “contact” him will not, in and of itself, justify a detention.256 REFUSAL TO IDENTIFY: A suspect’s refusal to identify himself is a relevant circumstance in determining the existence of probable cause.257 REFUSAL TO CONSENT: A suspect’s act of asserting his right not to consent to a search may not be considered.258 However, a suspect’s consent to search some property while refusing to permit a search of other property is relevant in determining if grounds to detain exist.259 OBSTRUCTED LICENSE PLATE: The view of the license plate on the suspect’s vehicle was obstructed.260

PROBABLE CAUSE TO SEARCH The need to establish probable cause to search usually arises when officers are applying for a search warrant or when they want to conduct a warrantless search of a car. As we will explain, probable cause to search is a little more exacting than probable cause to arrest because it usually requires, in addition to proof that a certain person committed a crime, proof that evidence of the crime, (1) exists; (2) was produced at, or taken to, the place to be searched; and (3) is still there.

Evidence exists

251 See People v. Andrino (1989) 210 Cal.App.3d 1395, 1401. 252 See People v. Reserva (1969) 2 Cal.App.3d 151, 157; People v. Wright (1990) 52 Cal.3d 367, 392; People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 166. 253 People v. Anderson (1983) 149 Cal.App.3d 1161, 1165. 254 See People v. Barnum (1980) 113 Cal.App.3d 340, 346; In re Trinidad V. (1989) 212 Cal.App.3d 1077, 1080. 255 See People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674; People v. Kaurish (1990) 52 Cal.3d 648, 676. 256 See Florida v. Bostick (1991) 501 US 429, 437; Florida v. Royer (1983) 460 US 491, 497-8; U.S. v. Wilson (4th Cir. 1991) 953 F.2d 116, 126 [“We are wary of allowing the exercise of the unequivocal right to ignore the police to be grafted onto the ‘reasonable suspicion’ analysis. ¶ We are not prepared, however, to rule that the form of a denial can never be included as a factor to be considered in determining whether an investigative stop was justified.”]. 257 See People v. Loudermilk (1987) 195 Cal.App.3d 996, 1002. 258 See People v. Miller (1972) 7 Cal.3d 219, 225. 259 See People v. Daugherty (1996) 50 Cal.App.4th 275, 287. ALSO SEE U.S. v. Wilson (9th Cir. 1991) 953 F.2d 116, 126 [court indicates the manner in which consent was denied might possibly be a factor]. 260 See People v. White (2001) 93 Cal.App.4th 1022.

41 To have probable cause to search, there must be reason to believe the evidence that is sought actually exists.261 In some cases, there is direct proof of this; e.g., a burglary victim provided a description of the stolen property, an autopsy report established that a certain caliber of gun was used in a homicide, an undercover officer or informant saw drugs inside the suspect’s house. 262 Oftentimes, however, the existence of evidence must be inferred from various facts. The most common inferences are as follows: Instrumentalities of a crime: When there is probable cause to believe a certain crime was committed, it is usually reasonable to infer the existence of items that are commonly used to commit or facilitate such a crime3; e.g., existence of hiking maps, books, and hiking schedules was reasonably inferred because the crimes under investigating were serial murders that occurred on hiking trails and areas; existence of drug sales paraphernalia may be inferred from evidence that the suspect is a drug dealer. 263 WHERE THERE’S SOME, THERE’S PROBABLY MORE: When officers find contraband, such as illegal weapons, drugs, or stolen property in the possession of a suspect, it is usually reasonable to believe there’s more there; e.g., possession of a handgun, drugs, or paraphernalia in a car or house will usually constitute probable cause to search for more.264

Probable location There must also be a fair probability that the evidence was taken to, or produced at, the place to be searched.265 This may be based on direct or circumstantial evidence, or reasonable inference:

261 See People v. Holmsen (1985) 173 Cal.App.3d 1045, 1048. ALSO SEE: U.S. v. Abbell (1997) 963 F.Supp. 1178, 1186 [“In essence, the nature of the offense is the foundation upon which the need for the search is constructed.”]. 262 See People v. Schilling (1987) 188 Cal.App.3d 1021, 1026, 1030; People v. Frank (1985) 38 Cal.3d 711, 728. 263 See People v. Senkir (1972) 26 Cal.App.3d 411, 420-1; People v. Superior Court (Marcil) (1972) 27 Cal.App.3d 404, 413 [“Numerous cases have upheld search warrants on the theory that one who sells narcotics may have more at his residence or place of operations.”]; People v. Golden (1971) 20 Cal.App.3d 211, 218-9 (dis. opn. of Kaus. J.) [“We have all handled enough narcotics cases and thus gained knowledge of the habits of peddlers, that we may perhaps reasonably suspect that such a person who deals a small amount of merchandise from his home, has more where it came from.”]; People v. Brevetz (1980) 112 Cal.App.3d 65, 70; People v. Johnson (1971) 21 Cal.App.3d 235, 243; Segura v. United States (1984) 468 US 796, 810-1. 264 See People v. Superior Court (Sanders) (1979) 99 Cal.App.3d 130, 134; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669 ; People v. Benites (1992) 9 Cal.App.4th 309, 328; People v. Nicholson (1989) 207 Cal.App.3d 707, 712; People v. Chapman (1990) 224 Cal.App.3d 253, 256; People v. Molina (1994) 25 Cal.App.4th 1038, 1042; People v. Hunt (1990) 225 Cal.App.3d 498, 509; People v. Sandoval (1985) 164 Cal.App.3d 958, 965; People v. Varela (1985) 172 Cal.App.3d 757, 762; People v. Dey (2000) 84 Cal.App.4th 1318, 1322; People v. Coleman (1991) 229 Cal.App.3d 321, 327; People v. Methey (1991) 227 Cal.App.3d 349, 358-9. 265 See Maryland v. Garrison (1987) 480 US 79, 84 [“Thus, the scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.”].

42 DIRECT EVIDENCE: Direct evidence concerning the location of the listed evidence may consist of information from a reliable source who saw the evidence at the location or who heard the suspect say it was located there.266 CIRCUMSTANTIAL EVIDENCE: Circumstantial evidence of location exists when there are specific facts which tend to—but do not directly—indicate the evidence is located there. Examples: [ It was reasonable to believe drugs were being kept at a certain residence when the suspect went directly from the residence to another location where he sold drugs to an undercover officer or informant.267 [ It was reasonable to believe drugs were being kept inside a home or business in which a “controlled buy” or “controlled delivery” was made .268 REASONABLE INFERENCE: In the absence of direct or circumstantial evidence, the probable location of the listed evidence may be established by reasonable inference; i.e., “the normal inferences as to where a criminal might likely hide incriminating evidence.”269 SUSPECT’S HOME: A LOGICAL PLACE TO SEARCH: It is usually reasonable to believe that evidence of a crime will be found at the home of the person who committed the crime.270

266 See People v. Howard (1976) 55 Cal.App.3d 373, 378; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206; People v. Medina (1985) 165 Cal.App.3d 11, 14; People v. Hansborough (1988) 199 Cal.App.3d 579, 582. 267 See People v. Romero (1996) 43 Cal.App.4th 440; People v. Aston (1985) 39 Cal.3d 481, 496; People v. Hernandez (1974) 43 Cal.App.3d 581, 585; People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315; People v. Fernandez (1989) 212 Cal.App.3d 984, 989; People v. Dickinson (1974) 43 Cal.App.3d 1034, 1037; Segura v. United States (1984) 468 US 796, 810-1; People v. Sanchez (1981) 116 Cal.App.3d 720, 727; People v. McNabb (1991) 228 Cal.App.3d 462, 469; People v. McCarter (1981) 117 Cal.App.3d 894, 901. COMPARE: People v. Hernandez (1994) 30 Cal.App.4th 919. 268 See People v. Watson (1979) 89 Cal.App.3d 376, 384-5; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206; People v. Kosoff (1973) 34 Cal.App.3d 920, 932 [“But it has consistently been held that it is proper for the authorities to allow a package of known contraband to be delivered to its intended recipient, for the purpose of apprehending or investigating the importers of narcotics.”]; People v. Shapiro (1974) 37 Cal.App.3d 1038, 1043; People v. O’Leary (1977) 70 Cal.App.3d 323, 329; Weber v. Superior Court (1973) 30 Cal.App.3d 810. Re controlled deliveries: “The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container.” Illinois v. Andreas (1983) 463 US 765, 769. 269 See People v. Miller (1978) 85 Cal.App.3d 194, 201; People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315; People v. Barnum (1980) 113 Cal.App.3d 340, 346; People v. Dumas (1973) 9 Cal.3d 871, 885; U.S. v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1399; People v. Cleland (1990) 225 Cal.App.3d 388, 392; People v. Meyer (1986) 183 Cal.App.3d 1150, 1162; New Jersey v. T.L.O. (1985) 469 US 325, 346; U.S. v. Lucarz (9th Cir. 1970) 430 F.2d 1051, 1055. 270 People v. Miller (1978) 85 Cal.App.3d 194, 204 [“A number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items.”]. ALSO SEE: People v. Bennett (1998) 17 Cal.4th 373, 388; People v. Alvarado (1967) 255 Cal.App.2d 285, 291; People v. Barnum (1980) 113 Cal.App.3d 340, 346; People v. Schoennauer (1980) 103 Cal.App.3d

43 SUSPECT’S CAR: A LOGICAL PLACE TO SEARCH: Depending on the nature of the evidence and the facts known to the officers, it may be reasonable to believe the suspect hid the evidence in his car because cars are usually under the owner’s control, nearby, and somewhat secure.271 PROCESS OF ELIMINATION: Process of elimination: If the evidence is not located in a certain place in which it logically might be found, it may be reasonable to infer it is located in the next logical location.272

Evidence is there now Finally there must be a fair probability that the evidence is presently located at the place to be searched.273 This can be established by direct evidence, such as information from a reliable source who saw the evidence at the location shortly before the warrant was issued, or a statement by the suspect to the source that the evidence was now there. In most cases, it is established by reasonable inference, such as the following: “FRESH” INFORMATION: It may be reasonable to infer that evidence is now located at the place to be searched if probable cause for the warrant was based on “fresh” information; i.e., information about events and circumstances that occurred or were observed recently.274

398, 410; People v. McCarter (1981) 117 Cal.App.3d 894, 901; People v. Frank (1985) 38 Cal.3d 711, 728; People v. Meyer (1986) 183 Cal.App.3d 1150, 1162; People v. Koch (1989) 209 Cal.App.3d 770, 780; People v. Superior Court (Marcil) (1972) 27 Cal.App.3d 404, 413; People v. Mayoff (1986) 42 Cal.3d 1302, 1320; People v. Tuadles (1992) 7 Cal.App.4th 1777; People v. Sanchez (1981) 116 Cal.App.3d 720, 727; People v. Aho (1985) 166 Cal.App.3d 984, 992-3; People v. Cleland (1990) 225 Cal.App.3d 388, 392-3 [seizure of “significant amount of contraband from a suspect’s person, combined with an expert’s opinion as to the likelihood that additional contraband might be found at that suspect’s residence, can justify the issuance of a search warrant for that suspect’s residence.”]; In re Christopher R. (1989) 216 Cal.App.3d 901, 905; People v. Freeny (1974) 37 Cal.App.3d 20, 29; People v. Johnson (1971) 21 Cal.App.3d 235, 243; People v. Gonzalez (1990) 51 Cal.3d 1179, 1206; People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167; U.S. v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1399; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1741-2 [“A student who carries a gun to school will generally keep the gun in one of three places: (1) a locker, (2) a backpack or purse or (3) on his person.”]; U.S. v. Reyes (10th Cir. 1986) 798 F.2d 380, 382; U.S. v. Feliz (1st Cir. 1999) 182 F.3d 82, 87-8. 271 See People v. Dumas (1973) 9 Cal.3d 871, 885. 272 See People v. Dumas (1973) 9 Cal.3d 871, 885 [“When the officers were unable to discover the bonds in defendant’s apartment, his automobile, parked outside on the street, quite naturally became an object of strong suspicion.”]. 273 See People v. Cleland (1990) 225 Cal.App.3d 388, 393; People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564; Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1464; People v. Sanchez (1972) 24 Cal.App.3d 664, 679. NOTE: “The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.” Andresen v. State (1975) 24 Md.App. 128, 331. 274 See People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564; People v. Mesa (1975) 14 Cal.3d 466, 470 [six-day lapse did not destroy probable cause to seize drugs]. NOTE: Although staleness

44 NATURE OF THE EVIDENCE: It may be reasonable to infer that some types of evidence will be kept at one location for a relatively long period of time (e.g., guns, clothing, tools, financial records, growing crop of marijuana) while other types of evidence will usually be moved, destroyed, or used up quickly (e.g., drugs, money).275 ONGOING CRIMES: When the premises to be searched are being used in connection with an ongoing criminal operation, it may be reasonable to infer that evidence pertaining to the crime will be kept there much longer than when the crime was an isolated occurrence.276 OLD INFORMATION UPDATED: If there was probable cause to believe the suspect was engaged in certain criminal activity in the past, there may be probable cause to believe the activity is continuing or has resumed if officers observe activities consistent with the past criminal operation.277

UNDER THE INFLUENCE

usually depends on the time lapse between the circumstances in the affidavit and the issuance of the warrant, the courts may also consider the amount of time that lapsed between issuance and execution. If, however, the court finds that the listed evidence was probably at the place to be searched at the time the warrant was issued, it will be presumed the evidence remained there for ten days after issuance. See Penal Code § 1534(a); People v. Cleland (1990) 225 Cal.App.3d 388, 394; People v. Kibblewhite (1986) 178 Cal.App.3d 783, 785. The defense may rebut this presumption. See People v. Hernandez (1974) 43 Cal.App.3d 581, 590, fn.3; People v. Clayton (1993) 18 Cal.App.4th 440, 447. 275 Re longevity of evidence: Drugs: See Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; People v. Hernandez (1974) 43 Cal.App.3d 581, 586; Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 433; People v. Mayer (1987) 188 Cal.App.3d 1101, 1119; People v. Sheridan (1969) 2 Cal.App.3d 483, 490; People v. Cohn (1973) 30 Cal.App.3d 738, 747; Brown v. Superior Court (1973) 34 Cal.App.3d 539, 544; People v. Wachter (1976) 58 Cal.App.3d 911, 919-20. Fruits and instrumentalities: See People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167; People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 476; People v. Cletcher (1982) 132 Cal.App.3d 878, 883; People v. Cooks (1983) 141 Cal.App.3d 224, 298; People v. Frank (1985) 38 Cal.3d 711, 728. Re Financial records: McKirdy v. Superior Court (1982) 138 Cal.App.3d 12, 26; Andresen v. Maryland (1976) 427 US 463, 478, fn.9; U.S. v. Greany (9th Cir. 1991) 929 F.2d 523, 525. Stolen property: People v. Dumas (1973) 9 Cal.3d 871, 885; People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167. Child pornography: U.S. v. Lacy (9th Cir. 1997) 119 F.3d 742, 746-7; U.S. v. Lamb (1996) 945 F.Supp. 441, 460. 276 See People v. Mikesell (1996) 46 Cal.App.4th 1711; People v. Miller (1978) 85 Cal.App.3d 194, 204; People v. Thompson (1979) 89 Cal.App.3d 425, 429-30; People v. Murphy (1974) 42 Cal.App.3d 81, 87; People v. Wilson (1986) 182 Cal.App.3d 742, 754; Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434; People v. Hepner (1994) 21 Cal.App.4th 761, 782-3; U.S. v. Greany (9th Cir. 1991) 929 F.2d 523, 525; U.S. v. Johnson (10th Cir. 1972) 461 F.2d 285, 287; People v. Brown (1985) 166 Cal.App.3d 1166, 1169; People v. Medina (1985) 165 Cal.App.3d 11, 20-1; People v. Gray (1976) 63 Cal.App.3d 282, 289; People v. Bustamante (1971) 16 Cal.App.3d 213, 218; People v. Sanchez (1972) 24 Cal.App.3d 664, 679; U.S. v. Henson (6th Cir. 1987) 848 F.2d 1374, 1382; U.S. v. Weinrich (5th Cir. 1978) 586 F.2d 481, 491 [“If an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.”]; U.S. v. Reyes (10th Cir. 1986) 798 F.2d 380, 382; U.S. v. Feliz (1st Cir. 1999) 182 F.3d 82, 87. 277 See People v. Mikesell (1996) 46 Cal.4th 711; People v. Lim (2000) 85 Cal.App.4th 1289, 1298.

45 Circumstances that tend to indicate a suspect is under the influence of drugs and/or alcohol include the following: [ pinpointed, constricted, or dilated pupils278 [ droopy, bloodshot eyelids279 [ eyes not reactive to light280 [ dry mouth281 [ slow, lethargic, or deliberate actions282 [ slow, deliberate speech, or slurred speech283 [ extreme nervousness284 [ profuse sweating unwarranted by weather or heating conditions285 [ suspect was in a place where drugs are commonly sold or used286 [ suspect was in the company of persons who were known to use drugs287 [ suspect has an arrest record for drug use288 [ suspect’s physical condition was emaciated289 [ injection marks on body where drugs are commonly injected290

CAR THEFT

278 See People v. Sanchez (1987) 195 Cal.App.3d 42; People v. Layne (1965) 235 Cal.App.2d 188, 190; People v. Snider (1978) 76 Cal.App.3d 560, 566; People v. Valdez (1968) 260 Cal.App.2d 895, 900; People v. Roy (1963) 222 Cal.App.2d 156, 158; People v. Lockwood (1967) 253 Cal.App.2d 75, 81; People v. Gregg (1968) 267 Cal.App.2d 567; People v. Handy (1971) 16 Cal.App.3d 858, 860; People v. Ochoa (1970) 9 Cal.App.3d 500; People v. Wade (1989) 208 Cal.App.3d 304, 307; People v. Herrera (1963) 221 Cal.App.2d 8, 10, 12; People v. Quinn (1961) 194 Cal.App.2d 172, 176; People v. Mendoza (1981) 122 Cal.App.3d Supp.12. 279 See People v. Sanchez (1987) 195 Cal.App.3d 42; People v. Lujan (1956) 141 Cal.App.2d 143, 145; People v. Cardenas (1982) 31 Cal.3d 897, 911; People v. Wade (1989) 208 Cal.App.3d 304, 307; Johanson v. DMV (1995) 36 Cal.App.4th 1209, 1217; Green v. DMV (1977) 68 Cal.App.3d 536, 539. 280 See People v. Gregg(1968) 267 Cal.App.2d 567; People v. Ochoa (1970) 9 Cal.App.3d 500; People v. Cardenas (1982) 31 Cal.3d 897, 911. 281 See People v. Wade (1989) 208 Cal.App.3d 304, 308. 282 See People v. Lujan (1956) 141 Cal.App.2d 143, 145; People v. Layne (1965) 235 Cal.App.2d 188, 190; People v. Cardenas (1982) 31 Cal.3d 897, 911; People v. Wade (1989) 208 Cal.App.3d 304, 307. 283 See Johanson v. DMV (1995) 36 Cal.App.4th 1209, 1217; Green v. DMV (1977) 68 Cal.App.3d 536, 539; People v. Sanchez (1987) 195 Cal.App.3d 42; People v. Layne (1965) 235 Cal.App.2d 188, 190; People v. Lockwood (1967) 253 Cal.App.2d 75, 81; People v. Quinn (1961) 194 Cal.App.2d 172, 176; People v. Mendoza (1981) 122 Cal.App.3d Supp 12. 284 See People v. Gregg (1968) 267 Cal.App.2d 567. 285 See People v. Gregg (1968) 267 Cal.App.2d 567. 286 See People v. Snider (1978) 76 Cal.App.3d 560, 566; People v. Rodriquez (1969) 274 Cal.App.2d 770, 775. 287 See People v. Valdez (1968) 260 Cal.App.2d 895, 900; People v. Roy (1963) 222 Cal.App.2d 156, 158. 288 See People v. Snider (1978) 76 Cal.App.3d 560, 566; People v. Morales (1968) 259 Cal.App.2d 290, 295. 289 See People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189. 290 See People v. Cardenas (1982) 31 Cal.3d 897, 911; People v. Sanchez (1987) 195 Cal.App.3d 42; People v. Gonzales (1989) 216 Cal.App.3d 1185, 1188; People v. Valdez (1968) 260 Cal.App.2d 895, 900; People v. Handy (1971) 16 Cal.App.3d 858, 860; People v. Herrera (1963) 221 Cal.App.2d 8, 10, 12; People v. Lockwood (1967) 253 Cal.App.2d 75, 81; People v. Quinn (1961) 194 Cal.App.2d 172, 176.

46 Circumstances that are relevant in establishing that a car driven by a suspect is stolen, include the following: [ failure to produce vehicle registration,291 or driver’s license292 [ missing or improperly attached license plate293 [ switched plates294 [ evasive driving or failure to stop promptly when lit up295 [ flight from officers296 [ driver or passenger in vehicle attempted to hide his face from officers297 [ evidence of ignition tampering or use of makeshift ignition key298 [ giving false or inconsistent statements about his possession of the car299 [ failing to explain his ownership or possession under circumstances that reasonably indicated a consciousness of guilt300 [ inability to name the registered owner of the vehicle301 [ broken windwing302

291 See People v. Superior Court (Simon) (1972) 7 Cal.3d 186; People v. Upton (1968) 257 Cal.App.2d 677, 683, fn.2. NOTE: PC does not exist merely because the driver could not produce vehicle registration, even if the driver was also unable to produce a driver’s license. See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 195-8. It does, however, provide grounds to question the driver about the lack of registration and may constitute probable cause if the driver’s answers are inconsistent, conflicting, or obviously false, or there were other circumstances that reasonably indicating the car was stolen, such as the circumstances listed above. Id. at pp. 196-7. 292 See People v. Superior Court (Simon) (1972) 7 Cal.3d 186; See People v. Upton (1968) 257 Cal.App.2d 677, 683, fn.2. 293 See People v. Superior Court (Simon) (1972) 7 Cal.3d 186; People v. Upton (1968) 257 Cal.App.2d 677, 683, fn.2. NOTE: Probable cause to believe a car was stolen does not exist merely because a license plate was missing or improperly attached, although such a circumstance is “highly suspicious.” See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 196. Probable cause would exist, however, if the license plate had been removed or was improperly attached, and the driver was unable to produce the vehicle registration. Id. at p. 196 294 People v. Windham (1987) 194 Cal.App.3d 1580, 1590. 295 See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 196; In re Jonathan M. (1981) 117 Cal.App.3d 530, 534-5; People v. Hopkins (1963) 214 Cal.App.2d 487, 492. 296 See In re Jonathan M. (1981) 117 Cal.App.3d 530, 534-5; People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609, 615; People v. Hopkins (1963) 214 Cal.App.2d 487, 492. ALSO SEE Illinois v. Wardlow (2000) 528 US __ [145 L.Ed.2d 570]. 297 See In re Jonathan M. (1981) 117 Cal.App.3d 530, 535 [“(minor) had tried to duck down and shield himself from view of the officers when the spotlight was directed to the interior of the vehicle.”]. 298 See In re Jonathan M. (1981) 117 Cal.App.3d 530, 535; People v. Windham (1987) 194 Cal.App.3d 1580, 1590. 299 See People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 197; People v. Upton (1968) 257 Cal.App.2d 677, 683, fn.2; People v. Hopkins (1963) 214 Cal.App.2d 487, 492. 300 See People v. Brown (1969) 1 Cal.App.3d 161, 165. 301 See People v. Upton (1968) 257 Cal.App.2d 677, 683; People v. Brown (1969) 1 Cal.App.3d 161, 165; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1364 [“(The suspect) informed the officer the car belonged to someone else—although he did not know the person’s last name. Any experienced officer hearing this frequently used but almost literally incredible tale—provided by a driver who had no identification, no proof of registration, and a car with tabs which Department of Motor Vehicles records showed did not belong to it—would have entertained a robust suspicion the car was stolen.”]. 302 See In re Jonathan M. (1981) 117 Cal.App.3d 530, 534 [court noted that a broken windwing is “a common means of entry to a locked vehicle.”]; People v. Windham (1987) 194 Cal.App.3d 1580, 1590.

47

POSSESSION CRIMES Grounds to detain or arrest a suspect for possession of drugs, stolen property, or other contraband exists if there was the required level of proof that, (1) the item was contraband and the suspect knew it, and (2) the suspect possessed the contraband.303

Knowledge A reasonable belief that an item was contraband and that the suspect knew it is commonly established by reasonable inference,304 especially an inference based on an officer’s training and experience.305 DRUGS: The following circumstances are relevant in establishing probable cause to arrest for possession of drugs: SMELL: The smell of the substance in the suspect’s possession.306 FEEL: The way the substance or its container felt during a pat search (e.g., heroin-filled balloon).307 DOG ALERT: Drug-detecting dog alerts on suspect or his property.308 SYMPTOMS: Suspect’s physical symptoms of recent drug use.309

303 See People v. Newman (1971) 5 Cal.3d 48, 52; People v. Gabriel (1986) 188 Cal.App.3d 1261, 1266; Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 521; People v. Magana (1979) 95 Cal.App.3d 453, 464; People v. Showers (1968) 68 Cal.2d 639, 642-3. ALSO SEE: CALJIC 1.24, 12.00, 14.65. 304 See Caple v. Superior Court (1987) 195 Cal.App.3d 594, 602; Rideout v. Superior Court (1967) 67 Cal.2d 471, 475; People v. Magana (1979) 95 Cal.App.3d 453, 464. 305 See Illinois v. Gates (1983) 462 US 213, 232; People v. Medina (1972) 7 Cal.3d 30, 37; People v. Spears (1991) 228 Cal.App.3d 1, 17-8; People v. Andrino (1989) 210 Cal.App.3d 1395, 1401; People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315. NOTE: Training and experience must be described in a Ramey warrant affidavit or at a MOTION TO SUPPRESS, and that the officer explain how his training and experience caused him to reach his conclusion. See People v. Huntsman (1984) 152 Cal.App.3d 1073. 306 See United States v. Ventresca (1965) 380 US 102, 111; United States v. Johns (1985) 469 US 478, 482; People v. Benjamin (1999) 77 Cal.App.4th 264, 273; People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826-7; People v. Cook (1975) 13 Cal.3d 663, 668; Mann v. Superior Court (1970) 3 Cal.3d 1, 7; New York v. Belton (1981) 453 US 454; People v. Shandloff (1985) 170 Cal.App.3d 372, 380-1; People v. Divito (1984) 152 Cal.App.3d 11, 14; Johnson v. United States (1948) 333 US 10, 13. NOTE: An odor of drugs may also provide probable cause to search. See In re Willy L. (1976) 56 Cal.App.3d 256, 263; People v. Lovejoy (1970) 12 Cal.App.3d 883, 887; People v. Wilson (1986) 182 Cal.App.3d 742, 754 In re Elisabeth H. (1971) 20 Cal.App.3d 323, 327-8; People v. Superior Court (Gilbert) (1981) 116 Cal.App.3d 450, 454; People v. Gale (1973) 9 Cal.3d 788, 794; People v. McKinnon (1972) 7 Cal.3d 899, 917. 307 See People v. Lee (1987) 194 Cal.App.3d 975, 984; Minnesota v. Dickerson (1993) 508 US 366]; People v. Dibb (1995) 37 Cal.App.4th 832; People v. Valdez (1987) 196 Cal.App.3d 799, 806- 7; People v. Chavers (1983) 33 Cal.3d 462, 471. 308 See Estes v. Rowland (1993) 14 Cal.App.4th 508, 529; People v. Salih (1985) 173 Cal.App.3d 1009, 1015; People v. Russell (1987) 195 Cal.App.3d 186, 189-190. ALSO SEE: People v. Mayberry (1982) 31 Cal.3d 335, 342; People v. Lester (1980) 101 Cal.App.3d 613; U.S. v. Buchanon (6th Cir. 1995) 72 F.3d 1217, 1219 [“An alert in the context of a canine narcotics sniff means a reaction given by a trained narcotics detention dog indicating that narcotics are present in the item being sniffed or have been present in such a way as to leave a detectable odor.”]. 309 See People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189, 1191; In re Ruth H. (1972) 26 Cal.App.3d 77, 82.

48 PACKAGING: Some containers are so distinctive as drug-carrying devices that mere possession of such a contain may constitute grounds to detain or arrest; e.g., bindles, tied balloons.310 On the other hand, possession of containers which are commonly used for legitimate purposes and sometimes for packaging drugs (e.g., film canisters, pill bottles) will not support a detention or arrest in the absence of additional incriminating circumstances.311 VISITING DRUG HOUSE: The relevance of a brief visit by the suspect to a home or other private place where drugs are commonly sold depends on whether there are additional circumstances that reasonably indicate the suspect is aware of the drug sales; e.g., furtive gestures upon officers’ arrival.312 HEAVY FOOT TRAFFIC: The existence of heavy foot traffic in and out of a suspect’s home is relevant in establishing the occupants are selling drugs or buying stolen property, especially if the visitors stay inside only a short time.313

310 See Texas v. Brown (1983) 460 US 730, 742-3 [knotted balloon]; Arkansas v. Sanders (1979) 442 US 753, 764, fn.13; Henry v. United States (1959) 361 US 98, 104; People v. Banks (1990) 217 Cal.App.3d 1358, 1364 [Zip-lock bags “are routinely used to carry rock cocaine.”]; People v. Nonnette (1990) 221 Cal.App.3d 659, 666 [bundle of tiny baggies of the type used for drugs]; People v. Lilienthal (1978) 22 Cal.3d 891, 898 [bindle]; People v. Smith (1981) 120 Cal.App.3d 282, 289; People v. Arango (1993) 12 Cal.App.4th 450, 454-5; People v. Gonzales (1989) 216 Cal.App.3d 1185, 1191; People v. Fay (1986) 184 Cal.App.3d 882, 893; People v. Sotelo (1971) 18 Cal.App.3d 9, 17; People v. Poole (1975) 48 Cal.App.3d 881, 885-6; People v. Rodrigues- Fernandez (1991) 235 Cal.App.3d 543, 547; People v. Ross (1968) 265 Cal.App.2d 195, 201, fn.2 [“Judicial notice may be taken that certain articles innocuous in themselves are part of the paraphernalia of narcotic users.”]; People v. Rodriquez (1969) 274 Cal.App.2d 770, 776 [“(I)t is common knowledge in police work that balloons or contraceptives are often used to carry narcotics because they can be swallowed to avoid detection.”]; People v. Clayton (1970) 13 Cal.App.3d 335, 337-8 [“It is now common knowledge among law enforcement officers, and trial counsel and judges, that small usable quantities of heroin are customarily carried in ‘bindles,’ small intricately folded papers aptly described by the police officer of our case as a ‘pharmaceutical paper.’”]; United States v. Jacobsen (1984) 466 US 109, 121; People v. McKinnon (1972) 7 Cal.3d 899, 917 [brick-shaped package smelling of marijuana]; People v. Ortiz (1995) 32 Cal.App.4th 286 290-1 [tinfoil bindles next to plastic, knife, and razor blade]; People v. Superior Court (Gilbert) (1981) 116 Cal.App.3d 450, 454 [bag “commonly used for illicit drugs hastily deposited under the hood of a car”; odor of PCP]; People v. Guy (1980) 107 Cal.App.3d 593, 599, fn.4 [baggie containing white powder]; U.S. v. Ayon-Meza (9th Cir. 1999) 177 F.3d 1130, 1133 [court notes “duct tape covering was favored by drug dealers”]. 311 See People v. Valdez (1987) 196 Cal.App.3d 799, 806-7 [film canister]; Remers v. Superior Court (1970) 2 Cal.3d 659, 662-3; People v. Holt (1989) 212 Cal.App.3d 1200, 1206-7 [aluminum foil container]; People v. Chapman (1990) 224 Cal.App.3d 253, 257 [“(A) container which is akin to a common product like a pill bottle, a pack of cigarettes, or a plastic bag may not be seized merely because it may also be commonly used to store narcotics.”]; People v. Limon (1993) 17 Cal.App.4th 524, 537-8; People v. Huntsman (1984) 152 Cal.App.3d 1073, 1083-4 [plastic bag]; People v. Vaasquez (1983) 138 Cal.App.3d 995, 1001 [pillowcases]. 312 See People v. Tenney (1972) 25 Cal.App.3d 16, 25; People v. Levy (1971) 16 Cal.App.3d 327, 334; People v. Banks (1990) 217 Cal.App.3d 1358, 1363; People v. Boyd (1959) 173 Cal.App.3d 537, 539. COMPARE People v. Valdez (1987) 196 Cal.App.3d 799, 806-7. 313 See People v. Kershaw (1983) 147 Cal.App.3d 750, 760; Bailey v. Superior Court (1992) 11 Cal.App.4th 1107, 1112 [“’Heavy foot traffic’ does not necessarily engender criminal behavior. True, under certain circumstances, such activity might raise suspicions, or be one indicator of possible narcotics transactions.”]; People v. Bigham (1975) 49 Cal.App.3d 73, 77; People v. Williams (1988) 198 Cal.App.3d 873, 890; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1720; People v. Medina (1985) 165 Cal.App.3d 11, 19-20, fn.4 [“(T)he foot traffic to Medina’s residence was

49 HAND-TO-HAND EXCHANGES: Probable cause may be based in part on one or more hand-to-hand exchanges with another person under circumstances indicating the transaction involved the sale of drugs:314 Money for apparent drugs: If money was exchanged for an object that reasonably appeared to be drugs or a common container for drugs, probable cause will likely exist.315 Money for unknown object: If the officer could not see the object that was purchased, the exchange will not, in and of itself, constitute probable cause.316 It is, however, a circumstance that will be considered in light of other circumstances indicating a drug sale; e.g., before the exchange, the seller retrieved an object from an apparent hiding place.317 HIDING OBJECT: Suspect attempted to hide or destroy the object.318 POSSESSION OF STOLEN PROPERTY: Probable cause to arrest for possession of stolen property requires proof that the suspect knew the property was stolen.319 Such knowledge may be based on direct or circumstantial evidence or otherwise inferred from the surrounding circumstances.320 Relevant circumstances: CONDITION OF PROPERTY: Indications that property was stolen includes obliterated serial numbers; clipped wires, pry marks or other signs of forced removal; the presence of store tags or anti-shoplifting devices that are usually removed when goods are sold.321 indeed suggestive of criminal conduct when examined as part of the total picture.”]; People v. Thomas (1980) 112 Cal.App.3d 980, 984; People v. Gray (1976) 63 Cal.App.3d 282, 287; People v. Childress (1979) 99 Cal.App.3d 36, 41; People v. Miller (1967) 248 Cal.App.2d 731, 734; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1717; People v. Mayer (1987) 188 Cal.App.3d 1101, 1119; People v. McFadin (1982) 127 Cal.App.3d 751, 767. COMPARE People v. Brown (1989) 210 Cal.App.3d 849, 858. 314 See Ker v. California (1963) 374 US 23, 35. 315 See People v. Garrett (1972) 29 Cal.App.3d 535; People v. Stanfill (1985) 170 Cal.App.3d 420. 316 See Cunha v. Superior Court (1970) 2 Cal.3d 352, 357; People v. Jones (1991) 228 Cal.App.3d 519, 524 [“(T)he mere fact that respondent received money from another person on the street in an area known for drug activity is insufficient justification for a detention.”]. NOTE: Such an exchange may justify a detention if the area is known for hand-to-hand drug sales. See People v. Limon (1993) 17 Cal.App.4th 524, 532. 317 See People v. Limon (1993) 17 Cal.App.4th 524, 532 [probable cause existed where the transaction occurred in an area where drugs are typically sold in such a manner, and the suspect walked over to an apparent hiding place before and after the exchange, thus indicating he was stashing drugs]; People v. Maltz (1971) 14 Cal.App.3d 381, 392-3; People v. Mims (1992) 9 Cal.App.4th 1244, 1248-9; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1743; People v. Childress (1979) 99 Cal.App.3d 36, 41; People v. Handy (1971) 16 Cal.App.3d 858, 860; In re Ruth H. (1972) 26 Cal.App.3d 77, 81; Ker v. California (1963) 374 US 23, 35. 318 See People v. Banks (1990) 217 Cal.App.3d 1358, 1363-4; People v. Alders (1978) 87 Cal.App.3d 313; People v. Levy (1971) 16 Cal.App.3d 327, 334; People v. Mims (1992) 9 Cal.App.4th 1244, 1249-50; People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742. 319 See People v. Ramey (1976) 16 Cal.3d 263, 270. 320 See People v. Ramey (1976) 16 Cal.3d 263, 270; People v. Rios (1988) 205 Cal.App.3d 833, 840 [“In determining whether there is probable cause to believe property has been stolen, a police officer may consider all circumstances reasonably bearing on the question; the officer is not limited to an examination of the item of property itself.”]; Henry v. United States (1959) 361 US 98, 104. 321 See People v. Gorak (1987) 196 Cal.App.3d 1032, 1039; In re Curtis T. (1989) 214 Cal.App.3d 1391, 1398; People v. Baker (1968) 267 Cal.App.2d 916, 919-920; People v. Atkins (1982) 128

50 LARGE QUANTITY OF PROPERTY: Suspect was in possession of an inordinate amount of certain property when it would be uncommon to possess such property in large quantities, especially when the property is of a type that is commonly stolen; e.g., TV’s, CD’s, cell phones, jewelry.322 SUSPICIOUS EXPLANATIONS: Suspect made conflicting or dubious explanations concerning his possession of the property.323 HIDING OBJECT: Suspect attempted to hide the property from officers, or made other furtive gestures relating to the property.324 FOOT TRAFFIC: There was a high volume of visitors to the suspect’s home, many of whom were carrying property in or out.325 LOW PRICE: Suspect admitted buying or selling the property for a price that was suspiciously low.326 NO LEGITIMATE INCOME: Suspect had no lawful means of support.327 MERE POSSESSION: Possession of a stolen item is, in and of itself, “a factor which could assist a reasonable person in formulating a strong suspicion that the recipient knew the item was stolen.”328 Possession with intent to sell: Relevant circumstances include quantity of drugs, packaging, lack of drug use paraphernalia, presence of a large amount of cash, officer’s expert opinion.329 Possession of concealed weapon: The discovery of the weapon constitutes probable cause; if it turns out the suspect was licensed to carry the weapon, the arrest is valid until the suspect furnishes the arresting officer with satisfactory proof that he has a permit.330

Suspect “possessed” the contraband

Cal.App.3d 564, 570; People v. Garcia (1981) 121 Cal.App.3d 239, 246; People v. Sedillo (1982) 135 Cal.App.3d 616, 623; People v. Williams (1988) 198 Cal.App.3d 873, 890; People v. McGraw (1981) 119 Cal.App.3d 582, 603; People v. Superior Court (Thomas) (1970) 9 Cal.App.3d 203, 210; People v. Jennings (1965) 231 Cal.App.2d 744; In re Donald L. (1978) 81 Cal.App.3d 770, 775 [assortment of jewelry, including women’s jewelry, in possession of man]. COMPARE: Arizona v. Hicks (1987) 480 US 321. 322 See People v. Martin (1973) 9 Cal.3d 687, 696; People v. Williams (1988) 198 Cal.App.3d 873, 890; People v. Wolder (1970) 4 Cal.App.3d 984, 994; In re Donald L. (1978) 81 Cal.App.3d 770, 775. 323 See People v. Memro (1995) 11 Cal.4th 786, 843; People v. Superior Court (Thomas) (1970) 9 Cal.App.3d 203, 210; People v. Clark (1989) 212 Cal.App.3d 1233, 1240; People v. Gravatt (1971) 22 Cal.App.3d 133, 137; People v. Garcia (1981) 121 Cal.App.3d 239, 245-6; People v. Jennings (1965) 231 Cal.App.2d 744; People v. Fry (1969) 271 Cal.App.2d 350, 355. 324 See People v. Moore (1970) 13 Cal.App.3d 424, 436; People v. Ruiz (1968) 265 Cal.App.2d 766, 769-72; People v. Martin (1973) 9 Cal.3d 687, 62; People v. Gravatt (1971) 22 Cal.App.3d 133, 137; People v. Garcia (1981) 121 Cal.App.3d 239, 245-6; People v. Stokes (1990) 224 Cal.App.3d 715, 720; People v. Miller (1976) 60 Cal.App.3d 849. 325 See People v. Williams (1988) 198 Cal.App.3d 873, 890. 326 See People v. Deutschman (1972) 23 Cal.App.3d 559, 562. 327 See People v. Williams (1988) 198 Cal.App.3d 873, 890. 328 See People v. Martin (1973) 9 Cal.3d 687, 696; People v. Ramey (1976) 16 Cal.3d 263, 270. 329 See People v. Parra (1999) 70 Cal.App.4th 222, 227; People v. Evans (1973) 34 Cal.App.3d 175, 179. 330 See People v. Superior Court (Saari) (1969) 2 Cal.App.3d 197, 202, fn.7.

51 Probable cause to believe a person is in possession of contraband exists if officers reasonably believed the person had sole or joint control over the item.331 Exclusive control is not required.332 Control may be established by direct or circumstantial evidence.333 Direct evidence of control: Direct evidence that a person was in control of certain contraband would exist, for example, if an officer saw the suspect carrying the item, attempting to dispose of or conceal it, or assisting someone else in disposing of or concealing it.334 Circumstantial evidence of control MERE PRESENCE: Probable cause to believe a person was in control of contraband does not exist merely because the person was present in a place where the contraband was located.335 MERE ACCESS: Access, alone, does not establish control.336 INDICIA: When contraband is found in a home or car, the suspect’s control over the contraband may be established by indicia at the location such as rent receipts, utility bills, driver’s license.337 CONTRABAND IN CAR: The driver and all passengers in a vehicle are usually considered to be in control of items to which they have immediate access or which are in their plain view.338

331 See People v. Patino (1984) 160 Cal.App.3d 986, 996; People v. Pena (1999) 74 Cal.App.4th 1078, 1083. 332 See People v. Maese (1980) 105 Cal.App.3d 710, 716. 333 See Caple v. Superior Court (1987) 195 Cal.App.3d 594, 602; Rideout v. Superior Court (1967) 67 Cal.2d 471, 475; People v. Maese (1980) 105 Cal.App.3d 710, 717; People v. Newman (1971) 5 Cal.3d 48, 52 [“Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.”]. 334 See People v. Martino (1985) 166 Cal.App.3d 777, 790 [“Plain view observation of a defendant attempting to dispose of or conceal contraband constitutes adequate probable cause to arrest.”]; People v. Esparza (1969) 2 Cal.App.3d 245, 247-8. 335 See Ybarra v. Illinois (1979) 444 US 85, 91; Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 521; People v. Shelton (1964) 60 Cal.2d 740, 745; People v. Crandall (1969) 275 Cal.App.2d 609. 336 See People v. Maese (1980) 105 Cal.App.3d 710, 716. 337 See People v. Nicolaus (1991) 54 Cal.3d 551, 575; People v. Goodall (1982) 131 Cal.App.3d 129, 143; People v. Rushing (1989) 209 Cal.App.3d 618, 622; People v. Williams (1992) 3 Cal.App.4th 1535. 338 ❏ In plain view on tape deck: There was PC to arrest the driver for possession of drugs that were in plain view on the tape deck below the dashboard of his car. See People v. Newman (1971) 5 Cal.3d 48, 53. ❏ In plain view on floorboard: There was PC to arrest the driver and passenger for possession of nunchakus that were in plain view on the floor on the driver’s side. See In re James M. (1977) 72 Cal.App.3d 133, 137-8. ALSO SEE: People v. Vermouth (1971) 20 Cal.App.3d 746, 756; People v. Schoennauer (1980) 103 Cal.App.3d 398, 410. ❏ In plain view behind back seat: PC cause existed to arrest two passengers in the back seat when officers found marijuana in plain view in the “well” behind the back seat. See Rideout v. Superior Court (1967) 67 Cal.2d 471, 473-5. ALSO SEE: People v. Hill (1974) 12 Cal.3d 731, 749. ❏ Smell of marijuana: PC to arrest the front- and back-seat occupants of a car existed when officers smelled burnt marijuana in the car and saw an enveloped marked “supergold” on the floor. See New York v. Belton (1981) 453 US 454, 462; United States v. Johns (1985) 469 US 478, 482; People v. Breault (1990) 223 Cal.App.3d 125. ALSO SEE: People v. Fitzpatrick (1970) 3

52 CONTRABAND IN RESIDENCE: It is usually reasonable to infer that a person in a residence has control over items that are in plain view in common areas of the home and in rooms over which the person has joint or exclusive control.339 COMPANION IN POSSESSION: When there is probable cause to believe a person is in possession of contraband, probable cause to arrest a companion for possession may also exist if there were specific facts that reasonably indicated the two were acting in concert.340

Cal.App.3d 824; People v. Nichols (1969) 1 Cal.App.3d 173, 175 [“The odor of marijuana justified the officer’s belief that marijuana was in the house.”]; People v. Benjamin (1999) 77 Cal.App.4th 264, 273 [“Odors may constitute probable cause if the magistrate finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance. . . . The strong aroma of fresh marijuana can establish probable cause to believe contraband is present.”]; People v. Cook (1975) 13 Cal.3d 663, 668-70; People v. Gale (1973) 9 Cal.3d 788, 794.

339 ❏ Guest’s bedroom: Probable cause existed to arrest a houseguest for possession of drugs after officers saw the drug in plain view in the bedroom in which he was staying and in which he was seen shortly before the drugs were found. See People v. Gabriel (1986) 188 Cal.App.3d 1261, 1265-6. ALSO SEE Frazzini v. Superior Court (1979) 7 Cal.App.3d 1005. ❏ Kitchen: Probable cause existed to arrest the wife of a suspected drug dealer when officers saw her walking from the kitchen where a package of marijuana was in plain view. See Ker v. California (1963) 374 US 23,36-7. ❏ In light fixture: Probable cause existed to arrest husband and wife when cocaine was found in a light fixture in the master bedroom. See People v. Magana (1979) 95 Cal.App.3d 453, 464. 340 ❏ Probable cause existed to arrest the front seat passenger in a car for possession of a billy club that was on the floor next to the driver’s door because officers found a five-inch knife within the passenger’s reach, thus indicating “there was an alliance between them, either defensive or offensive.” People v. Vermouth (1971) 20 Cal.App.3d 746, 756. ❏ Probable cause existed to arrest a woman who accompanied a drug seller to a home where the sale was to occur when a reliable informant told officers that the seller sometimes had a companion carry the drugs for him when he was going to make a sale. See People v. Fourshey (1974) 38 Cal.App.3d 426, 430. ❏ Probable cause existed to arrest the wife of a suspected drug dealer after officers received reliable information that her husband was dealing large quantities of drugs out of the residence; she was present in the house when a sale to an informant occurred; when officers arrived the only other person in the house attempted to flee; and during a search of the person officers found five heroin-filled balloons in his pocket. (Note that probable cause existed even though the informant said the suspect’s wife was not involved in the drug sales, and she had no arrest record.) Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 524. ALSO SEE: People v. Boyd (1959) 173 Cal.App.2d 537, 539; People v. Coleman (1972) 28 Cal.App.3d 36, 43. ❏ Probable cause existed to arrest a man for car theft when, about five hours after the car was stolen, officers saw the car parked near a phone booth, the car’s engine was running and its lights were on, a person was sitting in the passenger’s seat, the driver’s seat was unoccupied, the suspect was in a telephone booth about 15-20 feet away, and no one else was in the area. See People v. Windham (1987) 194 Cal.App.3d 1580, 1589. ❏ Probable cause did not exist to arrest a man for possession of a stolen check when he merely walked into a check-cashing store with a companion who attempted to cash the check. People v. Richards (1977) 72 Cal.App.3d 510. ❏ Probable cause did not exist to arrest the front seat passenger based on the discovery of counterfeit rationing coupons in the hand of a passenger in the back seat. See United States v. Di Re (1948) 332 US 581, 592.

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