Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203128
Sepulveda, J.
Defendant was convicted following his guilty plea to felony unlawful possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)) and placed on supervised probation for three years. He contends that the trial court erred in denying his motion pursuant to Penal Code section 1538.5 to suppress evidence seized after police received a dispatch report of shots being fired, and arrested defendant a short time later. We disagree and affirm.
As part of a plea agreement, a drug-related count and two firearms counts against defendant were dismissed.
I. Factual and Procedural Background
Around 9:00 p.m. on September 14, 2007, San Francisco Police Officer Breanna Elton received a dispatch report advising her that there had been a street gang shooting, and that about 15 people were heading southbound on Leavenworth Street toward Eddy Street. Officer Elton was advised that one of the people in the group was a Vietnamese male wearing a blue New York Yankees windbreaker, and that the male had possibly “handed off” a gun to a Vietnamese female. About 30 seconds later, Officers Elton and Leonard Caldera arrived at the intersection of Leavenworth and Eddy Streets, where they saw a group of 10 people walking closely together in the same direction “at a very brisk pace” southbound on Leavenworth toward Eddy. The group consisted of seven males and three females, who were “all bunched up together.” One of the males was wearing a New York Yankees jacket. The group was “predominately Cambodian,” with the exception of two African-American males (defendant and another male). Defendant was heading southbound with the group, with members from the group to his right and behind him. Officer Caldera told Officer Elton that the group included known members of the “Cambodian Crips” gang. Caldera later testified that it was his experience that members of the gang have used people of other races to carry narcotics and weapons for them.
Officers Elton and Caldera ordered the people in the group to stop, get on their knees, and face the wall so that the officers could conduct an investigation regarding a gun. Defendant, who had “a good bit of gray” in his hair and beard, said he was “on his way home and had nothing to do with those kids.” When asked if he had any weapons, defendant said that he had a gun that he used for protection. Officers searched defendant and found a loaded semiautomatic handgun in his front pants pocket; he was placed under arrest. A search incident to the arrest revealed suspected crack cocaine (later determined to be 40.98 grams of cocaine base) and a glass pipe in his jacket pocket.
Defendant filed a motion to suppress evidence seized after officers stopped him, and objected to any testimony that implicated the principles set forth in People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey) and People v. Madden (1970) 2 Cal.3d 1017 (Madden). The hearing on the motion was held concurrently with the preliminary hearing. The trial court denied the motion to suppress without comment, and held defendant to answer.
Defendant later filed a motion to dismiss (Pen. Code, § 995), renewing his argument that the seized evidence should be suppressed. He contended, as he had at the hearing on the motion to suppress, that the prosecution had failed to identify the original source of the information that led to defendant’s detention, as required by Harvey and Madden. The trial court denied the motion to dismiss, concluding that there was sufficient evidence presented that the information police received from official channels was corroborated when officers arrived on the scene.
II. Discussion
Defendant argues that police officers’ conduct in detaining him violated the Fourth Amendment. On appeal, we defer to the trial court’s factual findings, whether express or implied, if supported by substantial evidence, and we independently apply the law in evaluating the reasonableness of the search or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
When reviewing the denial of a motion pursuant to Penal Code section 995 that sought review of the denial of a motion to suppress, it is the determination made when the motion to suppress was denied that is reviewed. (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)
A police officer may temporarily detain and patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the person is presently armed. (Terry v. Ohio (1968) 392 U.S. 1, 30.) The issue is whether the officers can point to specific and articulable facts that give rise to a reasonable suspicion of criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; People v. Souza (1994) 9 Cal.4th 224, 230-231.) “ ‘[If] the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court, when challenged, evidence showing that the officer who originally furnished the information... was in possession of facts amounting to circumstances short of probable cause which would have justified him to personally make the detention.’ [Citation.]” (People v. Orozco (1981) 114 Cal.App.3d 435, 444.) “ ‘ “[When] it comes to justifying the total police activity in a court, the people must prove that the source of the information is something other than the imagination of an officer who does not become a witness.” [Citations.]’ [Citation.]” (Ibid., quoting Remers v. Superior Court (1970) 2 Cal.3d 659, 666.) “A radio broadcast which cannot be traced back to its source amounts to nothing more than an anonymous tip. Hence, the information contained in such a broadcast can support a detention only where that information is ‘sufficiently corroborated to furnish the requisite reasonable suspicion.’ [Citation.] Where significant portions of the broadcast can be verified, it is reasonable to conclude that the source of the information ‘is probably right about other facts... including the claim that the object of the tip is engaged in criminal activity.’ ” (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1644, original italics.)
Here, the prosecution did not produce any evidence regarding the source of the tip that shots had been fired and that a group of people was traveling southbound on Leavenworth Street toward Eddy Street, so the police dispatch report was nothing more than an “anonymous tip.” (In re Eskiel S., supra, 15 Cal.App.4th at p. 1644.) However, we conclude that the information provided by the dispatcher was sufficiently corroborated at the scene about 30 seconds later to provide the requisite reasonable suspicion to detain defendant. Officers Elton and Caldera almost immediately encountered a group at the same location and heading in the same direction as Elton had heard from the dispatcher. Just as the dispatcher had informed her, the group was predominately Asian, and one person was wearing a Yankees jacket. “Absent (1) the officer [her]self calling in the report to the dispatcher or, (2) clairvoyance on the part of the dispatcher, there is no way that the dispatcher could have manufactured these detailed descriptions at... the place and the time the officers saw [defendant]....” (In re Richard G. (2009) 173 Cal.App.4th 1252, 1259, petition for review filed June 23, 2009 (S174032).) Although there apparently was no information from the dispatcher that anyone in the group was African-American like defendant, both Officers Elton and Caldera testified that defendant was traveling with the group of Asians they encountered, that the group members were walking at the same speed and in the same direction, and that they were “all bunched up together.” Officer Caldera testified that in his experience, the Cambodian Crips use people of other races to carry narcotics and weapons. (United States v. Cortez (1981) 449 U.S. 411, 418-419 [reasonable suspicion may be based on inferences drawn by trained officers based on objective facts].)
“Where, as here, the evidence and the reasonable inferences flowing from it show that the police dispatcher actually received a telephone report creating a reasonable suspicion of criminal wrongdoing, it is not necessary to require strict compliance with the ‘Harvey-Madden’ rule.” (In re Richard G., supra, 173 Cal.App.4th at p. 1259.) Because things were as described in the police dispatch when officers arrived at the scene, it was reasonable for them to believe that members of the group they detained (including defendant) possessed a firearm(s). (People v. Orozco, supra, 114 Cal.App.3d at p. 445.) The detention (and subsequent search) of defendant were therefore reasonable.
III. Disposition
The order placing defendant on probation is affirmed.
We concur: Ruvolo, P.J., Reardon, J.