Opinion
B232148
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES BOWMAN, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BA373436
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
After the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant and appellant James Bowman pled no contest to the residential burglaries of Sarah Rizkalla on February 11, 2010, and Jacob Frazer on January 19, 2010, in violation of section 459. Defendant was placed on probation for three years, with probationary conditions including 365 days in county jail. In his timely appeal, defendant contends his suppression motion should have been granted because the arresting officers lacked probable cause to conduct the search incident to arrest that uncovered the personal property stolen from Rizkalla.
All further statutory citations are to the Penal Code unless stated otherwise.
Defendant had been charged with three counts of residential burglary. Upon acceptance of the plea agreement, the trial court dismissed the remaining count, alleging a February 4, 2010 burglary of Adarsh Reddy.
Defendant also contends the search of his backpack was illegal as exceeding the scope of an investigatory stop pursuant to Terry v. Ohio (1968) 392 U.S. 1. As the prosecution did not seek to justify the search under Terry and we find the search was a lawful search incident to arrest, we need not decide whether it exceeded the bounds of an investigatory detention.
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We affirm.
MOTION TO SUPPRESS
Defendant filed a motion to suppress the property discovered inside his backpack at the time of his arrest (including Rizkalla's laptop computer and "Blackberry" cell phone, as well as Rizkalla's identification of her property and defendant's contemporaneous statements and subsequent statements to police), arguing the warrantless search of the backpack amounted to an illegal search and seizure in violation of the Fourth Amendment and the subsequent statements must also be excluded because they were the "fruit" of the initial constitutional violation.
At the hearing, it was stipulated there was no search or arrest warrant issued pursuant to defendant's arrest. The prosecution's witness was Salvador Arevalo, a University of Southern California (USC) public safety officer and sworn peace officer. On February 11, 2010, at approximately 1:35 p.m., he received a radio call advising him of either a suspicious person or a burglary in progress at the USC dormitory on 364 West 34th Street. It was a coed dormitory with access limited to students and staff. The officer had previously been informed that there had been three or four reported thefts in that same dormitory. The suspect was described as an African-American male wearing a dark sweater and a black backpack on the fourth floor, "knocking on doors checking to see if they were open."
Officer Arevalo and his partner, Officer Gillies, drove to the dormitory in a marked USC Department of Public Safety Ford Explorer with a light bar on top. Both officers were in uniform. Two other public safety officers were already inside the building on the fourth floor. They radioed Officer Arevalo and told him that a suspect matching the description was on that floor and attempting to evade them—he went down the dormitory stairs upon "spott[ing] the officers." Officers Arevalo and Gillies parked their Explorer near the dormitory exit. Within a few seconds, defendant emerged, wearing a black or gray "hoody" sweater and a black backpack. Defendant looked around. Upon making eye contact with the marked patrol vehicle and the uniformed officers, defendant pulled the sweater hood over his head and backed behind a pillar out of the officers' sight. As defendant walked across the street, Officer Arevalo "intercepted him on foot, ordered him on the ground, and took him into custody."
After arresting defendant, Officer Gillies searched defendant's backpack. Inside were a pink or red Apple laptop computer and two cell phones, one of which was a Blackberry. Shortly thereafter, Rizkalla, a USC student, approached the officers. She was crying and told them her laptop and cell phone were missing. They showed her the items from the backpack, and she identified them as her property. She had not given defendant permission to take them.
After considering the testimony and the parties' arguments, the trial court denied the motion to suppress, finding the police had probable cause to arrest defendant and lawfully conducted the search of the backpack as an incident to that arrest.
DISCUSSION
"'In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. "We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Saunders (2006) 38 Cal.4th 1129, 1134 (Saunders))' ([People v.] Hernandez [(2008) 45 Cal.4th [295,] 298-299.)" (People v. Greenwood (2010) 189 Cal.App.4th 742, 745-746 (Greenwood).)
"'The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.)" (Greenwood, supra, 189 Cal.App.4th at p. 746.) When the police conduct a warrantless search, the burden is on the prosecution to establish that the search was justified by an exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830.) A search incident to a lawful arrest is an exception to the search warrant requirement. (Chimel v. California (1969) 395 U.S. 752, 762-763 (Chimel); People v. Nottoli (2011) 199 Cal.App.4th 531, 546-547 (Nottoli).)
When an officer has probable cause to arrest a suspect, a warrantless search becomes justified as a search incident to arrest and the officer may thoroughly search the suspect. (Chimel, supra, 395 U.S. at pp. 762-763; Nottoli, supra, 199 Cal.App.4th at pp. 546-547 ["[I]ncident to a lawful custodial arrest, the arresting officer could search the arrestee and the area within the arrestee's immediate control. The two justifications for the authority to search were officer safety and preservation of evidence."].) "'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) "[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts . . . ." (Illinois v. Gates (1983) 462 U.S. 213, 232.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371.) "'The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,'" and that belief must be "particularized with respect to the person to be . . . seized." (Ibid.)' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 474.) "It is well settled in California officers can make arrests based on information and probable cause furnished by other officers. [Citations.]" (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553.)
Here, consistent with the trial court's detailed factual findings, we find the officers had probable cause to arrest defendant outside the dormitory. Officer Arevalo knew there had been numerous theft crimes in the 364 West 34th Street dormitory when he received the report of a suspicious person or a burglary in progress at that dormitory. The suspect was described as wearing a dark sweater, who was on the fourth floor, knocking on doors checking to see if they were open. While Officer Arevalo was en route to the scene, other officers who were inside the dormitory reported seeing a person who matched that description on the fourth floor. The suspect sought to evade them by going down the stairwell. Consistent with that report, Officer Arevalo observed defendant, who matched the description of the fleeing suspect, exit the dormitory. Defendant looked at the marked patrol vehicle and the uniformed officers, tried to conceal himself, and fled across the street.
Unprovoked flight is recognized as providing support for an investigatory stop. (Illinois v. Wardlow (2000) 528 U.S. 119, 125; People v. Souza (1994) 9 Cal.4th 224, 235.) Defendant's unprovoked flight from two sets of officers, coupled with the other suspicious observations on which Officer Arevalo relied, added up to probable cause to arrest. Those circumstances would persuade a reasonably cautious police officer in Officer Arevalo's situation that defendant had committed a burglary.
The Constitution does not require that an arresting officer have a specific burglary in mind in order to have probable cause to arrest. "One treatise writer has explained, '[I]t is not essential to a finding of probable cause that the officer be able to relate the person or property to some particular prior crime. An arrest for burglary and a search of a vehicle for the fruits thereof, for example, is not rendered illegal by "the mere fact that, at the time the search and seizure occurred, the officer was unaware of any specific burglary."' (2 LaFave, Search and Seizure (2d ed. 1987) § 3.6(a), p. 32, fns. omitted.) The nature of the property, the manner and circumstances of its possession, efforts by the defendant to conceal the property from police view, flight upon approach of the police, or other facts may combine to establish probable cause to arrest even if the police officer is unaware of any specific crime having been committed. (Id. at pp. 32-34 and cases there cited; see, e.g., People v. Martin (1973) 9 Cal.3d 687, 691-692 [officer's knowledge of defendant's prior arrests for receiving stolen property and officer's observations of defendant's highly suspicious conduct, including presence of number of business machines in rear of station wagon parked by defendant and transfer of one of those machines to another vehicle, constituted probable cause to believe crime had been committed or was in progress].)" (People v. Stokes (1990) 224 Cal.App.3d 715, 720-721.)
Defendant asserts that each of the facts relied upon by the trial court in finding probable cause, individually, are not necessarily incriminating. "[I]f the circumstances are 'consistent with criminal activity,' they permit—even demand—an investigation: the public rightfully expects a police officer to inquire into such circumstances 'in the proper discharge of the officer's duties.' (People v. Flores [(1974)] 12 Cal.3d [85,] 91.) No reason appears for a contrary result simply because the circumstances are also 'consistent with lawful activity,' as may often be the case. 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. (1978) 21 Cal.3d 888, 894.)
The totality of the circumstances gave Officer Arevalo probable cause to arrest. Officer Arevalo was aware the dormitory had been the location of multiple thefts. Not only did defendant match the description of the suspicious person who was acting in a manner of a burglar, but he sought to evade the uniformed officers when initially confronted. When defendant emerged from the building in the location indicated by the other officers, he wore a backpack and dark sweatshirt, as described in the first radio report. Officer Arevalo watched as defendant took furtive and evasive actions upon seeing the uniformed officers. All of defendant's conduct was consistent with guilt. The Constitution does not require Officer Arevalo to wait for a victim to report a specific theft, as he had a strong suspicion of defendant's criminal activity.
DISPOSITION
The judgment is affirmed.
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KRIEGLER, J.
We concur:
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TURNER, P. J.
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MOSK, J.