People v. Leyba

¶1I am in full agreement with the majority’s analysis of the proper standard for appellate review of rulings on motions to suppress evidence, with particular reference to evidence obtained as a result of an investigative stop. (Ante, pp. 596-598.)

¶2Applying that standard to the facts of this case, however, I dissent from the majority’s conclusion that it was objectively reasonable for Officer Lee to suspect that criminal activity was afoot and this defendant was involved in it. I would therefore affirm the trial court’s implied ruling to the contrary.

¶3*601Officer Lee based his decision to make the investigative stop on both the conduct of the participants and the setting in which he observed that conduct. First he stressed the fact that the two cars appeared to blink their lights at each other, then drove off one behind the other. From this conduct the officer could reasonably infer that the occupants of the cars knew each other and intended that one car would follow the other to some destination. But this inference does not support a reasonable suspicion that the occupants were therefore engaged in criminal activity. It is perfectly normal for persons meeting in different cars, whether by chance or prearrangement, to greet or signal each other by such means as blinking their lights, blowing their horns, or making hand motions.1 There is little support in the record for Officer Lee’s speculation that the purpose of such blinking in this case was to warn the other driver that the patrol car had been observed: he admitted that the police vehicle was parked 75 yards away from the intersection of Mina and Meyer, and that the Monte Carlo did not pass him in going to that intersection but approached it from the opposite direction. Moreover, even if the driver of the Monte Carlo had seen and recognized the patrol car at that distance in the dark and had intended to signal its presence to the other vehicle, the fact would not justify the detention. As we explained in detail in People v. Bower (1979) 24 Cal.3d 638, 647-649 [156 Cal.Rptr. 856, 597 P.2d 115], such an intrusion on personal liberty is not warranted merely because the individual behaves nervously at the approach of police officers or takes action to avoid being accosted by them: “If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless; it would exist only to the extent it was not exercised. Such a conclusion is unacceptable.” (Id. at p. 649.)

¶4Nor does Officer Lee’s reliance on the “high crime area” rationale reasonably transform this conduct into criminally significant activity. He testified that he was aware there had been a substantial number of nighttime burglaries of schools in the “general area”; but he also admitted he had no knowledge that any burglary had taken place at the particular school where he saw the cars blink their lights. Again, we explained at length in Bower (id. at pp. 645-646 & fn. 8) why the “high crime area” justification for investigative stops is “easily subject to abuse,” and I need not repeat that analysis here. As we concluded in *602Bower(at p. 645), “this court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]” (See also People v. McGaughran (1979) 25 Cal.3d 577, 589 [159 Cal.Rptr. 191, 601 P.2d 207].) No reason to depart from this practice appears in the sweeping generalizations relied on by the police in the case at bar.

¶5Finally, the observed conduct is not clothed with an aura of criminality merely because the officer also believed that the burglaries in the area had been committed by “Mexican gangs.” He did not claim any ground to believe that the occupants of the particular cars he was observing were Mexicans, less still that they were members of a “gang.” And even if he somehow had such grounds, the fact would not justify the detention: as we warned in Bower(24 Cal. 3d at pp. 646-647), if “the alleged crime rate of an area is ‘easily subject to abuse,’ it should be obvious that one officer’s perception of the criminal tendencies of a racial group is far more so.” (Italics in original; see also In re Tony C. (1978) 21 Cal.3d 888, 897 [148 Cal.Rptr. 366, 582 P.2d 957].)

¶6No other justifications for the stop and detention are asserted. Here, as in McGaughran(25 Cal.3d at pp. 590-591), “we have discussed the allegedly suspicious circumstances seriatim simply because we cannot discuss them simultaneously. Like the trial court, however, in determining their sufficiency we view them not in isolation but in their totality, taking account of the effect that each may have in supporting the others.” Having done so, I conclude for the reasons stated that when Officer Lee acted to stop and detain defendant he did not do so on “specific and articulable facts” that could support a rational suspicion of criminal conduct. Even though the officer may well have been acting in good faith, the intrusion was based on his mere curiosity or hunch and hence was impermissible under Tony C. and its progeny. The motion to suppress the evidence was therefore properly granted and the action properly dismissed.

¶7Bird, C. J., and Feinberg, J.,* concurred.

¶8Respondent’s petition for a rehearing was denied August 13, 1981. Bird, C. J., was of the opinion that the petition should be granted.