Anton Vialtsin, Esq.

State Bar No. 290333

401 W. A St., Suite 1100

San Diego, CA 92101

Telephone: (619) 357-6677

Attorney for Defendant

ELLIOT NERIA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

Central Division

People of the state of california,
Plaintiff,
vs.
elliot neria,
Defendant. / Case No.: CD254562
memorandum of points and AUTHORITIES in support of the motion to SUPPRESS IDENTIFICATION evidence, dna evidence, photo lineup, and physical evidence.

“[T]here [is] a sense that the detaining officer relied too heavily on the common general traits of race and age in attempting to justify a stop that had no other circumstances to warrant it.”

–People v. Walker, 210 Cal. App. 4th 1372, 1388 (2012).

It haslong been established that vague and generalized descriptions of suspects, particularly descriptions that are essentially proxies for race, cannot constitute reasonable suspicion of a crime. Officer Robert Hopper detained Elliot Neria under the pretext that he matched a description of Daniel Robles, one of the suspects. The officer omitted from his police reports a crucial fact – that he had previously met Daniel Robles and already knew what he

looked like. The same officer also cannot justify the detention based onthe description by the second victim ifhe did not rely on it at the time of the detention; to do so would countenance a “detain-now-justify-later” approach.[1] Besides, the descriptiongiven by De La Rosa, the other victim,failed to meaningfully distinguish the suspects from countless other young Hispanics. This Court must suppress all evidence obtained by police as a result of the illegal detention.

STATEMENT OF FACTS[2]

On March 4, 2014, San Diego police began investigating an assault. The two victims, Jose Flores and Edward De La Rosa,gave conflicting accounts of thenumber of assailants. Further, the victims gave very broad and vague descriptions of the suspects. Independent witnesses interviewed by police also gave conflicting accounts of the number of individuals involved and likewise could not provide detailed descriptions of the assailants.[3]

  1. An admittedly “disoriented and confused” Jose Flores described Chubbs and his brother as two of theassailants – both of whom Officer Hopper already knew.

OfficerHopper interviewed one of the victims, Jose Flores, on the day of the assault. Flores was unsure how many males had assaulted him, though he stated that he was jumped byfour or five Hispanic males. He knew that one of the suspects was Jose Robles (aka “Chubbs”),and he also remembered being punched by two other males.

Notably, Officer Hopper described Flores as “disoriented and confused” when describing the assailants.[4] Significantly, Flores could hardly rememberthe basic features of the suspects, and heeven needed to be reminded of the names for basic body partsand features such as lips and eyebrows. He did, however, remember the physical characteristics of one of the assailants, Chubbs’s brother, Daniel Robles. Officer Hopper already knew Daniel Robles and his physical characteristics from previous contacts. Hopper nonethelessomitted from his reports that he had previously conducted a field interview Daniel Robles.

  1. Edward De La Rosa Lopez gave broad descriptions of the suspects that could match the vast majority of Hispanic young men.

The other victim, Edward De La Rosa Lopez, stated that five Hispanic males jumped him. According to De La Rosa, heassumed a fetal position during the fight, with his hands over his head. After the incident, he described the suspects to Officer Katherine Morganas:

Suspect 1: Heavyset, wearing a short sleeve black collar shirt (“gangster style shirt”) and jeans;

Suspect 2: Light skin, gray hat, black shirt, blue jeans, and blue chucks;

Suspect 3: Light skin, white shirt, black and blue jeans, black shoes;

Suspect 4: Medium skin, bald, blue and gray shirt, jeans, and unknown shoes; and

Suspect 5: Unknown clothing, no further details.

Notably, De La Rosa made no mention that the suspects had facial hair or unique eyebrows.[5] He also did not meaningfully differentiate between the suspects, mentioning only the skin tone andthe clothing of the suspects.

  1. On March 5, 2014, at 2:19 pm, Officers Morgan and Hopper, purportedly relying on a description given by one of the victims, detained Neria.

Before stopping Neria, Hopper told Officer Morgan that based on the description given to him by Flores he believed that Neria was involved in the fight the previous day.[6] When Hopper commanded Neria to stop, Neria was pushing a stroller with a child and walking with two young female relatives down the alley of 3500 Madison Ave. According to the discovery, Officer Hopper did not interview any victims or witnesses to the alleged crime other than Flores, who had described onlyChubbs and his younger brother. Hopper had, however, previously interviewed Chubbs’s brother and thus personally knew him.[7] The officer focused only on the limited information given to him by Flores and ignored his own unique personal knowledge of the suspect’s identity.

Police detained Neria in the middle of the day in a residential neighborhood. Having his younger siblings with him, Neria remained very cooperative. Even though Neria did not appear to pose an immediate danger to the officers or the general public, the officers told Neria to sit in the back seat of a police vehicle without handcuffs or on the front bumper of the vehicle with handcuffs on. Neria sat in the back seat of the police vehicle.

The officer explained to Neria that he was stopped because he matched a description of a male involved in an incident the police were investigating. While Neria was seated in the vehicle, the police began a two to three hour investigation into the assault. The officers took pictures of Elliot Neriaand called additional detectives to the scene. While waiting for back up to arrive, the officers took photos of Neria, his shoes, and injuries to his hand. Police also took DNA samples of the stains located on Neria’s shoes. Detective Timothy Smith arrived at the scene and chose to use Neria’s photo to arrange a sequential photo lineup to show one of the victims, Jose Flores. Detective Smith then had to locate Flores, drive to meet with him, and

conduct a photo lineup. Flores identified Neria. In the meantime, Neria remainedseated in the patrol vehicle being observed by other officers. After several hours of detention, Neria wasadvised that he was under arrest, placed in handcuffs, and transported to the police substation.

Suspect Identification Chart[8]

  1. This Court should suppress the photo lineup, DNA evidence, physical evidence, and all further evidence obtained as fruits of an illegal detentionbecause police detained Neria based on vague and general descriptions that failed to provide reasonable suspicion.

It is well established that law enforcement can stop and briefly detain a person for investigative purposes if there is a reasonable suspicion supported by articulable facts that criminal activity “may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989). The reasonable suspicion must be something more than inchoate suspicion or a “hunch.” Id.

  1. Officer Hopper illegally detained Elliot Neria under the pretext that Neria looked like Chubbs’s brother, even though Hopper personally knew Chubbs’s brother from previous contacts.

Neria was illegally detained a day after the alleged incident and roughly a kilometer away from the crime scene. At the time of the detention, Neria was casually pushing a stroller down the street accompanied by three young female relatives and a friend. Neria’s detention occurred in the middle of the day in a residential neighborhood, and nothing in Neria’s behavior wassuspicious. Even if it was a high crime area, “[a] day-old … [crime] report does not transform a residential neighborhood into a no man's land in which any passerby is fair game for a roving police interrogation.” In re Tony C., 21 Cal. 3d 888, 897(1978). An assertion that the location of the arrest lay in a “high crime” area does not elevate other factors into a reasonable suspicion of criminality. People v. Bower, 24 Cal. 3d 638, 645 (1979).

In People v. Walker, the government argued that police had reasonable suspicion to detain the defendant because he resembled the suspect in height, weight, age, nose shape, hair color, hair line and skin color. 210 Cal. App. 4th 1372, 1377 (2012). The court stated that there was some commonality between one of the suspects and the defendant, namely they were both black males in similar age and weight ranges. Id. at 1386. The court did not find reasonable suspicion to detain the suspect, however, and pointed out that, “there [is] a sense that the detaining officer relied too heavily on the common general traits of race and age in attempting to justify a stop that had no other circumstances to warrant it.” Id. at 1388.

In this case, Officer Morgan testified[9] that her partner, Officer Hopper, decided to stop Neria because he resembled the description provided by Jose Flores.[10] One day prior, Flores told Hopper that he could not remember the full details regarding the incident because he blacked out. He had trouble remembering names for even basic features of the suspects such as lips and eyebrows. Hopper noted that Flores was “obviously disoriented and confused” when describing the suspects.[11]

Flores described two of the five alleged assailants, namely Jose Robles (aka “Chubbs”) and his brother, Daniel Robles, both of whom had previously had numerous contacts with police. Notably, Officer Hopper himself had previously interacted with Daniel Robles. Hopper knew what Daniel Robles looked like and who he was. Despite this fact, Officer Hopper did not disclose in his reports that he had previously had such contact and never mentioned Daniel Robles by name. Officer Hopper simply listed Flores’s description of Chubbs’s brother as a Hispanic male, approximately 5’8” tall, normal build, 18-20 years old, with short black hair, with a mustache and hair on his chin, and marijuana leaf tattoo on his upper arm.

Elliot Neria, who could be described as a young man with a normal build and a weight of 170 pounds,clearly did not resemble the 330 pound Chubbs. Comparing the description of Chubbs’s little brother to Neria, there is certainly some commonality. Both men are of similar age and share common racial traits. Unlike Walker, where police could only rely on descriptions given to them by the witnesses, however, here the officers had already had previous contacts with Daniel Robles and knew what he looked like. Officer Hopper justified Neria’s detention by omitting from his reports the fact that he had personal knowledge of the only two suspects

described by Flores. Courts generally agree that “[a]n officer contemplating an arrest is not free to disregard plainly exculpatory evidence… [.]” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Here, Officer Hopper was aware that Neria was not Chubbs’s little brother, yet with exculpatory evidence in handthe officer nonetheless initiated a lengthy detention. Once illegally detained, officers did not ask Neria whether he was related to Chubbs because they already knew that he was not. The officers did not even confirm Neria’s identity; instead,the officers continued their investigation, turning a blind eye to the fact that Hopper was well aware of the trueidentity of Chubbs’s brother. Put simply, Officer Hopper “may not disregard readily available exculpatory evidence of which he is aware.” Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000). Allowing police to flagrantly ignore the exculpatory facts known to them would put everyone in jeopardy ofdetention based solely on information that benefits police.

  1. Police illegally detained Elliot Neria based on vague descriptions given by De La Rosa that would fit almost any young Hispanic male.

De La Rosa only described thesuspects’ skin tone and clothing. He described suspects one through fourto Officer Morgan as either “light skin” or “medium skin.”[12] The clothing did not have any unique characteristics. The description of the fifth suspect had the least meaningful information: “unknown clothing, no further details.”[13] Officer Hopper also filled out the Suspect Report listing descriptions of five suspects. It is unclear where this information on the report came from because Officer Hopper interviewed only Jose Flores, the victim who provided information on only two suspects. Inexplicably, the report does not completely match the descriptions provided by De La Rosa, who described five suspects. Even though De La Rosa differentiated the suspects by their skin tone, the report lists all suspects’ complexions as “medium.”

According to the Suspect Report, suspect one was a 300-330 pound male. This description does not fit Elliot Neria, who weighs 170 pounds, and most likely describes Chubbs. The Suspect Report described the second suspect as a Hispanic male with a marijuana tattoo. Jose Flores confirmed that Daniel Robles had such a tattoo.[14] Elliot Neria did not fit the description of suspect number three because he was wearing different colored clothing and did not have a swollen left eye at the time of the arrest. The description of the fifth suspect is completely unknown.

Elliot Neria could conceivably match only the description of the fourth suspect, described as an18-20 year old Hispanic male, between 5’6”-5’7” and with a normal build. Both the description by De La Rosa and the Suspect Report stated that the fourth suspect was wearing a blue shirt. But there are some discrepancies between the accounts. De La Rosa said that this suspect was bald yet the report lists the suspect with short black thick hair. The report also states that suspect four had thick eyebrows, yet Officer Hopper did not interview anyone who mentioned that trait. Significantly, Neria had facial hair at the time of the arrest, but the facial hair of the fourth suspect was listed as “unknown” on the report.

First and foremost, Officer Hopper should not be able to justify the detention based on the information provided by De La Rosa or other witnesses, because he did not rely on that information at the time of the detention. Officer Morgan testified that Officer Hopper had stated that the suspect matched the description he received from Flores.[15] “A detention may not be justified after the fact on a basis not relied on by the officer. This would countenance a detain-now-justify-later approach to police instructions which is contrary to the constitutional requirements that protect a citizen against unreasonable searches and seizures.” People v. Bower, 24 Cal. 3d 638, 646 (1979).

Even if police relied on De La Rosa’s descriptions, the broad generalizations that De La

Rosa gave police, such as the skin tone, clothing, and thick eyebrows would put a large number of Hispanic males in the suspect pool, especially in a predominantly Hispanic neighborhood. Census data currently estimates the population of 18-19 year olds in the general area of the assault (92116 zipcode) to be 67% Hispanic.[16] “Such wholesale intrusion into the privacy of a significant portion of our citizenry would be both socially intolerable and constitutionally impermissible.” In re Tony C., 21 Cal. 3d 888 (1978). Courts have generally rejectedvague descriptions of racial traits such as those provided by De La Rosa.

Indeed, the Supreme Court of California expressed “grave doubt as to the lawfulness of” a detention based upon meeting a description as general as “[a] male Negroe [sic], six foot, 160 pounds.” People v. Collins, 1 Cal. 3d 658, 660 (1970). The court expressed concern that such a description failed to distinguish the defendant from a substantial portion of the population of south-central Los Angeles. Id. The description of the suspect’s height and weightin Collins was very exact, yet the court doubted the existence of reasonable suspicion to detain based only on race, gender, height, and weight.

In our case, the height, weight, and age descriptions from Hopper’s incident report were mere ranges. The build of suspects two through fourwas described as “normal.” LikeCollins, where the area was populated by predominantly one race, Mr. Neria was stopped in the Normal Heights Area of San Diego, which has a predominantly Hispanic population. The description of the fourth suspect provided by De La Rosa and/or Hopper’s Report would match a striking portion of the 67% Hispanic population where Neria was illegally detained.

De La Rosa gave a description of the suspects which only described their skin tone as “light” or “medium.”[17] Courts have long recognized that a defendant’s race does not establish reasonable suspicion for detention. People v. Bower, 24 Cal. 3d 638, 644 (1979). When an area is heavily populated by one race, specifically a population that is 67% Hispanic, the officer