BEDSWORTH, Acting P. J., Dissenting. This is the compact we make with our police; They agree to take on the darkest and dirtiest, most difficult job in our society, in return for which we agree to judge them not by their results, but by the reasonableness of their actions. We do this in recognition of the fact their decisions must often be made with very little reflection, on the basis of rapidly changing circumstances,' rife with danger to them and to us.'(See Graham v. Connor (1989) 490 U.S. 386, 396-397 [104 L.Ed.2d 443, 109 S.Ct. 1865].)
So it is that we evaluate the propriety of their searches and seizures not by what they turn up, but by whether it was probable at the search’s inception that it would develop evidence of a crime. (People v. Hill (1974) 12 Cal.3d 731, 748, fn. 16 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal.Rptr. 786, 558 P.2d 872].) We judge their arrests not by a standard of certitude, but of “probable cause,” which we define as an “ ‘honest and strong suspicion.’ ” (People v. Harris (1975) 15 Cal.3d 384, 388, 389 [124 Cal.Rptr. 536, 540 P.2d 632].) And we require not even a probable cause level of likelihood to support the critical law enforcement tool of detention; for that we require only “reasonable suspicion.” We demand only that there be “some objective manifestation that the person to be detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231 [36 Cal.Rptr.2d 569, 885 P.2d 982].)
[237]This last is vitally important. Detention is almost certainly the most powerful tool we have provided the police. I am convinced it saves more lives and prevents more crime every day than search warrants, computers, handguns and helicopters combined. I am convinced its immense value is the only reason we give up that part of our precious freedom that is infringed by the admittedly unwelcome and unsettling experience of being confronted and questioned by an armed police officer, backed by the immense power of the state or federal government. I am convinced we must guard the liberties diminished by detention as zealously as we protect all the rest of our Fourth and Fifth Amendment rights. But I am also convinced all these considerations support the detention in this case, so I must respectfully dissent from my colleagues’ decision to suppress the resultant evidence.
Detection and prevention of criminal activity is the cardinal function of our police. It is also the most difficult, dangerous, and constitutionally problematic. We are constantly called upon to balance the immeasurable value of effective law enforcement—to the individual citizen and to our society in general—against the precious individual rights that are the raison d’etre of effective law enforcement. I think that balance here should have been struck in favor of law enforcement; I see no threat to individual rights in this detention, and I would deny defendant’s motion to suppress and order the trial court to reinstate the charges against him.
The sole issue presented is the lawfulness of defendant’s detention. “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza, supra, 9 Cal.4th at p. 231.) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1988) 21 Cal.3d 888, 894 [148 Cal.Rptr. 366, 582 P.2d 957].) Otherwise, the police would not have the necessary flexibility to investigate suspicious behavior. Confronted with a situation that is legally ambiguous, the police have every right “ ‘to resolve that . . . ambiguity and establish whether the activity is in fact legal or illegal ....’” (Ibid.) When they do investigate, and a detention results, the police should not be judged under rigid rules or held to the standard of “scientific certainty.” (Illinois v. Wardlow (2000) 528 U.S. 119, 125 [145 L.Ed.2d 570, 120 S.Ct. 673].) Rather, “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” (Ibid.)
The inquiry is factually driven, of course, and we have learned over time that “[a]n area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the [238]Fourth Amendment.” (People v. Souza, supra, 9 Cal.4th at p. 240; see also Illinois v. Wardlow, supra, 528 U.S. at p. 124.) “[W]e must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings 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.” (People v. Holloway (1985) 176 Cal.App.3d 150, 155 [221 Cal.Rptr. 394].) The detention here occurred in an area known to Officer Tisdale for gang activity, drug dealing and violent crime. It was a “high-crime area” by any definition of the term.
Moreover, the detention occurred late in the evening, about 11:30 p.m. This is another circumstance that lends support to the officer’s actions. (See People v. Souza, supra, 9 Cal.4th at p. 241.) My concurring colleague devotes most of her opinion to distinguishing this case from Souza,1 in part on the basis that Souza was a 3:00 a.m. detention and this one was conducted three and a half hours earlier, but as was noted in People v. Rosenfeld (1971) 16 Cal.App.3d 619, 622 [94 Cal.Rptr. 380], with regard to a 9:00 p.m. detention, “Notwithstanding defendant’s claim that the hour of 9 p.m. is ‘conventional,’ it is night-time, and although 9 p.m. is a conventional hour it serves just as effectively to hide criminal activity as does 11 p.m. or 2 a.m.”
The detention did not just occur in a high-crime area late at night, however. Officer Tisdale had specific information that there had been a rash of recent armed robberies at 7-Eleven stores in Anaheim. This logically fueled the officer’s suspicions and added to the quantum of evidence in support of the detention. (See U.S. v. Abokhai (8th Cir. 1987) 829 F.2d 666 [prior armed robbery of Texaco station relevant in determining whether defendant was lawfully detained at another Texaco station]; People v. Davis (1968) 260 Cal.App.2d 186 [67 Cal.Rptr. 54] [prior burglaries in area added to suspicion of defendant’s late-night presence at.service station].)
So did the fact that defendant met the description of the person involved in the prior robberies. The 7-Eleven robber was described as being a male Hispanic or African-American in his late 20’s with a shaved head. According to respondent’s brief, “Defendant is a 32 year-old Hispanic male with a ‘buzz cut.’ ”2 Granted, this description was general. But the fact defendant matched [239]it is-relevant insofar as it “included, rather than excluded” him as a suspect. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1093 [126 Cal.Rptr. 898].)
Other factors were also at play. When Officer Tisdale saw defendant’s car, it was parked—with its motor running—in an odd location. Rather than taking one of the open spots close to the store, defendant chose to park his vehicle near the exit and facing the street, which would allow a would-be robber a quicker getaway. (See U.S. v. Douglas (1992) 964 F.2d 738 [that defendant parked in adjacent lot of apartment complex deemed suspicious when there was closer parking available to him].) It is true we have no sure way of knowing the condition of the parking lot when appellant arrived there; that is one of the things a detention would help resolve.
• Adding to Officer Tisdale’s suspicions, defendant was “crouched low in the driver’s, seat” and “leaning against the glass.” The officer watched him for some time and he made no move to go into the store, or leave, or turn off his engine. But as soon as the officer approached him, he fumbled about in his car and dropped something on the floor. Such furtive, nervous behavior, combined with the location and time of the encounter, and the cluster of 7-Eleven robberies would have put any reasonable person on heightened alert that criminal activity might be afoot. (See 4 LaFave, Search and Seizure (4th ed. 2004) § 9.5(f), p. 516, citing U.S. v. Watson (5th Cir. 1992) 953 F.2d 895, 897 [finding it suspicious that .when officer approached his car, defendant moved in his seat “as if to conceal or retrieve some item”]; U.S. v. Stanley (1st Cir. 1990) 915 F.2d 54, 56 [suspicion increased where defendant “moved as though he were hiding something under the seat”].)
But that was not the end of it. When defendant spotted Officer Tisdale in his rearview mirror, he suddenly exited his vehicle and “quickly” and “aggressively” tried to avoid him. That was his right, of course, but it is an appropriate consideration in determining the legality of Officer Tisdale’s actions. Such evasive conduct, although less incriminating than headlong flight (see, e.g., Illinois v. Wardlow, supra, 528 U.S. 119), is nevertheless suspicious in character. (See 4 LaFave, supra, pp. 516-521, citing U.S. v. Lender (4th Cir. 1993) 985 F.2d 151 [defendant attempted to evade officers [240]by turning his back on them and walking away]; People v. Souza, supra, 9 Cal.4th at p. 241 [suspects ducked down when officer shone spotlight toward their car].)
My concurring colleague is concerned that upholding this detention would send a confusing signal about consensual encounters. She asks, “[H]ow does one exercise one’s right to decline a conversation with a police officer without assisting the officer in establishing reasonable suspicion?” (Cone, opn., ante, at p. 236.) This is an important concern. It is one I share. We cannot very well tell people they have a right not to cooperate, with the police and then allow them to be detained if they exercise that “right.”
But, of course, that is a false portrayal of the options here. No individual is obliged to talk to the police and if he chooses not to, his choice is insufficient to justify his detention. If his reluctance to cooperate with the police is the only thing “suspicious” about his conduct, he cannot be stopped. (See Florida v. Royer (1983) 460 U.S. 491, 498 [75 L.Ed.2d 229, 103 S.Ct. 1319] [citizen not required to talk to police; “He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds” (italics added)]; Florida v. Bostick (1991) 501 U.S. 429, 437 [115 L.Ed.2d 389, 111 S.Ct. 2382] [“a refusal to cooperate [with the police], without more, does not furnish the minimal level of objective justification needed for a detention” (italics added)].) That is clearly the law, and should be.
But if he is suspiciously parked, late at night, in the parking lot of a 7-Eleven store, in a high-crime area, with his engine running, and if there has been a rash of recent armed robberies of 7-Eleven ¡stores in that area, and if those robberies took place late at night and were perpetrated by a young African-American or Hispanic individual, and if he is a young Hispanic, and if he sho.ws no inclination to move from his car until police approach it and then tries to avoid them . . . then his decision to avoid'them must, in any reasonable exercise of common sense, be considered in combination with all those other factors in judging the validity of his . detention.
And when I consider all those factors, I conclude he can be legally detained because of them. He cannot be arrested, because that would require probable cause. But he can be detained for the short time it takes to: find out if he has an innocent explanation of these facts or if hé has—as in this case— two handguns and a very dubious plan for the evening.
[241]Resolving the ambiguity my colleagues see in these circumstances is the whole point of detentions. And while detentions sometimes inconvenience innocent citizens, we allow them for the safety of the community and its police. I think the Fourth Amendment countenances that result. I think Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868] countenanced it on facts certainly no stronger than these. And I think we should countenance it here.
Appellant’s petition for review by the Supreme Court was denied July 25, 2007, S153207. Werdegar, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.
Souza is an instructive case, but I am not suggesting this detention should be upheld because it is the same as Souza’s. It is not. No two cases are identical. And this detention must stand or fall not upon its resemblance to Souza but on its reasonableness.
My concurring colleague questions my inclusion of this fact because “[t]he record does not reflect that the officer made observations at any time regarding Pémisquia’s ethnicity or age.” (Conc. opn., ante, at p. 235, fn. 1.) She is right that while the officer testified to Perrusquia’s short hair, he offered no opinion that he “looked Hispanic.” The record does, however, include [239]Perrusquia’s trial and appellate attorneys’ concessions that he was a young Hispanic male as part of the argument police should not be detaining every male African-American or Hispanic who frequents a 7-Eleven store—an irrebuttable position but one not strictly applicable to the facts of this case. While I would have preferred a finding on the record of Perrusquia’s Hispanic heritage, I think his attorneys’ candid concession obviates that. At any rate, I hardly consider this factor dispositive. It was merely one of many that called for a detention. The detention was not based upon race or ethnicity and does not require it to comply with the Fourth Amendment.