Opinion
A147269
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GEBRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN220098)
Defendant Michael Gebre appeals from a judgment of the trial court upon a negotiated disposition of his case that resulted in his conviction for second degree robbery and a sentence of nine years in state prison. Defendant argues the trial court erred in denying his motion to suppress evidence seized by police that supported this conviction because he was stopped and detained in violation of his rights against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. We disagree and affirm the judgment.
BACKGROUND
In December 2015, a couple of days after the commencement of trial proceedings, defendant agreed to a negotiated disposition of his case. He pleaded guilty to one of four counts brought against him, for second degree robbery (Pen. Code, § 211), and admitted to an accompanying sentence enhancement allegation that he personally used a firearm (§ 12022.5, subd. (a)).
Defendant was charged in a consolidated information along with another defendant.
All statutory references in this opinion are to the Penal Code.
The trial court accepted the plea, found defendant guilty of the charge and the enhancement allegation to be true, and sentenced defendant to a total term of nine years in prison. This was comprised of five years for the robbery conviction and four years for the firearm enhancement, to run concurrently with a sentence defendant received in another case for second degree robbery.
Defendant's agreement to the negotiated disposition of his case came after the trial court denied his motion to suppress evidence, brought pursuant to section 1538.5, which the People opposed. Defendant filed a timely notice of appeal from the trial court's judgment, indicating he was challenging the court's denial of his motion to suppress.
In his suppression motion, defendant argued that his initial detention by police was unlawful for lack of reasonable suspicion; his detention was unlawfully prolonged; his arrest was illegal for lack of probable cause; his property was unlawfully seized; and police had conducted an unlawful search incident to his arrest. Therefore, the court should suppress all evidence obtained.
Evidence presented at the hearing on defendant's suppression motion indicated that on September 27, 2012, shortly after 8:00 p.m., Officer Nathan Chew of the San Francisco Police Department was dispatched to Red Rock Way in San Francisco. There, he interviewed Victor Emanuel Solano, who said he had been robbed. Solano told Officer Chew that he had been approached outside of his condominium building by "a black male, very tall, skinny build," who was around six feet tall, 20 years of age and wearing a black hooded sweatshirt and dark blue denim jeans. This skinny male asked Solano for directions to a local Safeway grocery store. As Solano pointed in the store's direction, he "pulled Mr. Solano by the arm close to him and then presented a semi-automatic firearm and told Mr. Solano to give him his cell phone and his backpack and wallet." Solano gave him these items, including his Apple iPhone.
At the hearing, Officer Chew responded to the question of whether Solano had said "anyone else was on the scene," that Solano had "said [a] heavy set black male" wearing a white t-shirt. Asked if Solano had described "the role of the heavy set black male in the robbery," Officer Chew testified that Solano had said this male "was sitting inside the driver's seat of a tan minivan." Solano described the minivan as being a Toyota or other Japanese model vehicle.
Officer Chew gave the information he received from Solano to police dispatch, which broadcast the information. The broadcast indicated that Solano saw the male who robbed him go towards the van, but did not see him get in the van.
Another officer with the San Francisco Police Department, Officer Mark Lustenberger, also came to the robbery scene and spoke to Solano. When he learned Solano's cell phone was an iPhone, Officer Lustenberger opened an application called "Find My Phone," which he had previously used when he or his wife had misplaced their phones. He testified that the application "tells me a location the phone could be, and you can send a sound to it so you can hear it." He continued, "So when you open up the application . . . [d]epending on who you are, you put in your Apple ID and your password and then start to try and locate your phone." The application would show on a map the last known location where the phone had been turned on, with "a dot on the map where the phone can be." Officer Lustenberger, using Solano's Apple ID and password, used the application on his own iPhone. The application showed a map with a "dot" in the area around Mission Street and 7th Street in San Francisco. He notified dispatch, which broadcast an alert to all police units in that area. He was notified around 8:39 p.m. that units had possible suspects matching the descriptions that had been given. Officers Lustenberger and Chew then transported Solano to that location.
Defendant's counsel objected below that Officer Lustenberger lacked the expertise to testify about how to use the application or how it worked, but defendant does not raise this issue on appeal.
Defendant and another man had been detained by other San Francisco police officers as a result of the dispatch broadcast. Officer David Nastari was on uniformed motorcycle patrol around Mission and 22nd Streets when he heard the broadcast alerting officers about a robbery, and to look for a heavy-set black male, possibly in his twenties, wearing a white shirt, driving a tan minivan, possibly a Japanese model with a passenger described as a tall, slender black male in his 20s wearing a black sweatshirt and jeans, in the area of Market and 7th Streets. He heard there was a phone involved in the robbery that had sent a signal from that location.
Officer Nastari testified that the broadcast identified the last known location of the phone as 7th and Market Street. Officer Lustenberger testified that the location was 7th and Mission. These locations are a block apart and the discrepancy is immaterial. --------
As Officer Nastari and his partner, Officer Castro, also on a motorcycle, drove eastbound on Mission towards 7th Street, they saw a new model "gold tan" van parked on Laskie Street between 8th and 9th Streets with its flashers on. Nastari thought the van was possibly a new model "Japanese style" van, but it turned out to be a Plymouth. Officer Nastari noticed a "heavy set black male" in a blue shirt walking eastbound on the sidewalk towards the van, and did not see anyone else in connection with the van. Officer Nastari and his partner decided to investigate. They each made a U-turn and went back towards the van.
Officer Nastari drove up alongside the van and looked inside. He saw the driver and "another black male in the passenger's seat." The passenger was tall, slender and wearing a black hooded sweatshirt, and Officer Nastari identified him in the courtroom as defendant. Officer Nastari asked the men, "[H]ow you guys doing?" They said they were fine and he drove past them, made a U-turn and got off his motorcycle. The van started driving towards him and looked like it was starting to turning around. Officer Nastari walked up to the van on the passenger's side with his weapon drawn. He told the men that the officers were conducting an investigation, to keep their hands where he could see them and to step out of the van. About 20 minutes had passed since Nastari heard the initial dispatch call.
When defendant stepped out, Officer Nastari conducted a pat-down search of him for weapons and had him sit on the sidewalk, uncuffed. Officer Castro took the other man out of the driver's side of the van. After talking to defendant for about five minutes, Officer Nastari heard two other officers walk up and stated that the driver had signed a consent to search form and one of the officers searched the van. About ten or fifteen minutes after the initial detention, the officer searching the van called out a police code for a firearm, at which point Officer Nastari handcuffed defendant. Officer Nastari sat with defendant until bringing him to the "cold show" after Solano arrived. The parties stipulated that defendant was 6 feet, 6 inches tall.
Sergeant Chris Canning of the San Francisco Police Department testified that he was one of the officers who arrived at the scene as Officers Nastari and Castro were detaining the suspects. Among other things, Canning testified that prior to arriving there, he heard a "broadcast over the radio . . . that there was a robbery involving a firearm that occurred in the Ingleside district, and the vehicle involved in the robbery was a tan or beige minivan that appeared to be of similar description to the vehicle that was being stopped at Mission and Laskie Streets."
Solano participated in two cold shows from the patrol car. According to Officer Lustenberger, who also testified at the hearing, when Solano was shown defendant, "[h]e visibly got upset," "started to cry" and said, " '[T]hat's him.' " When the second suspect was shown to Solano, Solano said he was pretty sure the suspect was the driver of the van. The police also showed Solano the gun that had been found in the van, and Solano, recognizing the silver part of it, identified it as the one used in the robbery. He also told police that a backpack found in the van belonged to him. Defendant was then placed under arrest.
At the conclusion of the hearing, after hearing argument from counsel and considering all of the evidence, the court denied defendant's motion to suppress. First, it found defendant's detention was legal. The court said, "starting with the descriptions of the two suspects . . . combined with the description of the van that was near the robbery suspect and the description . . . of physical characteristics of the two men and clothing characteristics and at least some of the characteristics of the van, being that it was a van not a car and that it was tan, I think that combined with the information provided by the cell phone provided by the phone app . . . gave sufficient, reasonable suspicion for the detention of the defendant.
"The fact that the defendant is a tall slender black male. That he has a black sweatshirt on. That he did have blue jeans on. And . . . it appears they are not a dark denim jean but that they appear to be denim jeans . . . , but the combination of the tall slender build, and he clearly is a tall slender man with the black sweatshirt and at least jeans of some description combined with the information about the other suspect being heavy set. . . . [H]e is extremely a heavy set man. . . . And the Court did note that there was a light-colored shirt of some kind underneath a dark colored shirt that [the heavy set man] was wearing. That kind of clothing can obviously be taken on or off at any time.
"The fact that something is a tan minivan, that is distinctive. That it was possibly Japanese and turned out to be an American model, I don't think is dispositive of the fact that it was within . . . a couple of blocks of the area where the ping had shown the Find My iPhone app. I think all of that warranted the detention.
"That the detention was at gunpoint is of no moment given that the crime which was alleged had been a robbery at gunpoint. So it's no surprise that the police would make a full felony stop with guns drawn in that respect. It did not appear that the detention was unduly prolonged in a situation where after detention the alleged victim in this case is brought to the scene for the cold show."
The court also found defendant's arrest and the police search and seizure of evidence were lawful. The court said, "The consent to search was obtained from the other suspect. The van was searched. There was probable cause to arrest once the alleged victim in this case made the identification of the defendant and with the consent to search separate even from the issue of whether this defendant had standing to recognize the issue of the search of the van. . . . [T]he Court finds that there is evidence to support there was consent to search the van by the man who was the driver of the van at the time of the detention."
DISCUSSION
I.
The Trial Court Properly Ruled That the Police Stop of the Van and Their Detention of
Defendant Were Supported by Reasonable Suspicion.
Defendant argues that, contrary to the trial court's ruling, Officers Nastari and Castro did not have reasonable suspicion to stop the van and detain him because they lacked any information that the robbery suspect actually got into the van that was reported to be at the scene of the robbery, only that the suspect moved towards it following the robbery; the van they stopped was a Plymouth when they understood the van spotted at the robbery scene was "possibly a Japanese style van"; there were differences between the descriptions they had of the robbery suspects and the appearances of defendant and the other man they stopped; and they never had reason to believe the stolen mobile phone was on Laskie Street, where they spotted the van. We disagree.
Generally, probable cause is necessary to justify the seizure of a person. (Whren v. United States (1996) 517 U.S. 806, 817.) An officer who lacks probable cause to arrest "can conduct a brief investigative detention when there is ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citations.] Because an investigative detention allows the police to ascertain whether suspicious conduct is criminal activity, such a detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " (People v. Celis (2004) 33 Cal.4th 667, 674 (Celis).)
Under the Fourth Amendment of the United States Constitution, an officer may conduct an investigative traffic stop when the officer "has 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.' " (Navarette v. California (2014) 572 U.S. ___, [134 S.Ct. 1683, 1687].) This "reasonable suspicion" " 'is dependent upon both the content of information possessed by police and its degree of reliability.' [Citation.] The standard takes into account 'the totality of the circumstances—the whole picture.' [Citation.] Although a mere ' "hunch" ' does not create reasonable suspicion, [citation], the level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause." (Ibid.) "Reasonable suspicion," as well as "probable cause," "are commonsense, nontechnical conceptions that deal with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " (Ornelas v. United States (1996) 517 U.S. 690, 695.)
In the court below, "[t]he state bears the burden of justifying . . . all warrantless intrusions." (People v. Wilkins (1986) 186 Cal.App.3d 804, 809.) On appeal, we " 'defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " (People v. Maury (2003) 30 Cal.4th 342, 384.)
In this case, Officer Nastari testified that while on motorcycle patrol he received information that a person was robbed by a tall, slender black male in his twenties wearing a black sweatshirt and jeans and that a heavy-set black male in his 20s wearing a white shirt was seen sitting in the driver's seat of a tan, possibly Japanese model, van at the scene. Officer Nastari further understood that a stolen phone was pinging at 7th and Market before its signal went off.
These detailed descriptions of the suspects and the van were well-matched by what Officer Nastari saw a couple of blocks away from 7th and Mission. Specifically, he saw a heavy-set black male walking towards and then getting in the driver's side of a tan van that could have been a Japanese model and a tall, slender black male sitting in the van's passenger seat wearing a black hooded sweatshirt. These observations provided reasonable suspicion for the stop of the van and detention of defendant.
Defendant supports his argument that there was a lack of reasonable suspicion by pointing out the discrepancies between the dispatch report and what Officer Nastari found when he stopped the van and detained defendant. These include that the van was a Plymouth, not a Japanese model; the second man wore a blue shirt rather than a white shirt; a photograph of defendant taken in the course of his detention and arrest show him wearing what appear to be light denim jeans rather than dark denim jeans; and defendant was six feet, six inches tall, rather than six feet tall.
These discrepancies must be considered as part of the totality of the circumstances, which include the significant matches between the descriptions aired by dispatch and what Officer Nastari found when he came upon the van and the two suspects. The presence of the two suspects together in a van, with both men and the vehicle within two or three blocks of the location where the stolen cellphone had recently pinged, matching the general physical descriptions broadcast, was grounds for reasonable suspicion regardless of these minor discrepancies. As the People point out, "minor discrepancies do not prevent development of the suspicions which justify temporary detention for questioning. Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties." (People v. Smith (1970) 4 Cal.App.3d 41, 48-49.) Thus, courts have repeatedly held an investigatory detention proper under the totality of the circumstances even when a suspect's characteristics are not an exact match with the victim's description. (See, e.g., People v. Craig (1978) 86 Cal.App.3d 905, 911-912 [finding an investigatory detention reasonable because, although "[d]efendants did not perfectly match the general description given," "the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number)"].)
Defendant contends that the connection between the robbery suspect and the second man and the van was itself "quite flimsy" because Solano did not see the suspect actually get into the van. Again, this fact must be considered in light of the totality of the circumstances. The evidence presented at the hearing does not include details about the proximity of the second man or the van to the robbery. However, Officer Chew, responding to the question of whether Solano had said "anyone else [was] on the scene," testified that Solano had "said [a] heavy set black male" wearing a white t-shirt" who "was sitting inside the driver's seat of a tan minivan." Further, from information provided by Officer Chew, it was broadcast to officers that Solano saw defendant move towards the van. Thus, Solano considered this information important enough to tell Chew, who considered it important enough to include it in his report to dispatch. It can be reasonably inferred from this that both the victim and Officer Chew suspected there was an association between defendant and the second man.
Defendant further contends that "[t]he manner in which the officers located the van in which [the second man and defendant] sat is also questionable." He acknowledges that this court held in People v. Barnes (2013) 216 Cal.App.4th 1508 (Barnes) "that the use of GPS technology in ascertaining the location of the stolen cell phone, and thus assisting in the locating of defendant was no violation of the Fourth Amendment." (Id. at p. 1519.) However, he attempts to distinguish Barnes on the facts. In Barnes, he points out, the GPS-tracked location of the relevant cell phone and the officers' first observation of the defendant were virtually the same, in the area around 16th and Mission Street. (Id. at p. 1511.) Here, the stolen phone was tracked to 7th and Mission Street, but by the time Officer Nastari happened upon the van on Laskie Street between 8th and 9th Streets roughly 12 minutes later the iPhone app had stopped reporting any location for the phone. Therefore, defendant argues, Officer Nastari had no reason to believe that the stolen mobile phone was ever on Laskie Street or within "several blocks" of that alley and there was not reasonable suspicion for the subsequent stop and detention.
Defendant's contention parses the facts too finely. Solano's phone was tracked from another part of town to the vicinity of 7th and Mission and, some minutes later, police observed two men matching the descriptions of the suspects in numerous respects sitting in a tan van, in the driver's and passenger's seats as indicated by the description of the robbery, within a few blocks of that location. An objectively reasonable person would suspect their involvement in the robbery based on the totality of these circumstances. We conclude there was sufficient reasonable suspicion for the police to stop the van and detain defendant.
II.
The Trial Court Properly Ruled That Defendant's Initial Detention Was Not Transformed
into an Unlawful De Facto Arrest.
Defendant next argues that his detention was not properly limited in its scope and duration, thereby transforming it into a de facto arrest, which was unlawful because at the time of this transformation it was not supported by probable cause. Again, we disagree.
"When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause." (In re Carlos M. (1990) 220 Cal.App.3d 372, 384.) The scope of the investigatory detention " ' "must be carefully tailored to its underlying justification. [¶] The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. [Citations.] It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." ' " (In re Antonio B. (2008) 166 Cal.App.4th 435, 440.) Further, "[e]ven if the police do not formally arrest a suspect, that suspect may nevertheless be under actual arrest if the restraint employed by the police goes beyond that which is reasonably necessary for a detention." (People v. Campbell (1981) 118 Cal.App.3d 588, 595-596, cited with approval in Celis, supra, 33 Cal.4th at p. 675.)
"The distinction between a detention and an arrest 'may in some instances create difficult line-drawing problems.' " (Celis, supra, 33 Cal.4th at p. 674.) " '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.] Important to this assessment . . . are the 'duration, scope and purpose' of the stop." (Id. at pp. 674-675.)
Defendant contends his removal from the van on Laskie Street at gunpoint was so overly intrusive as to convert his detention into an unlawful de facto arrest. According to our Supreme Court, being detained at gunpoint is "a factor increasing the intrusiveness of the detention." (People v. Glaser (1995) 11 Cal.4th 354, 366, fn. omitted.) "[U]nder some circumstances a detention at gunpoint may be deemed a full arrest, justifiable only by the existence of probable cause. [Citation.] In other instances, however, the information available to officers, and the circumstances in which they find themselves, will justify the drawing of weapons without the existence of probable cause." (Ibid.)
According to defendant, "[t]he officers who seized the occupants of the Plymouth van had, at most, grounds to suspect that one of the occupants of the van might have been armed at the time of the stop, if, in fact, the person who committed the robbery of Solano was to be found in the van. There was no evidence, however, of [defendant or the second man] engaging in any uncooperative or risk-posing behavior at the scene of the stop; indeed, they had exchanged pleasantries with Nastari just a moment earlier. The crime [defendant] was suspected of committing at the time he was seized was the robbery of a cell phone and backpack, with no physical injury to . . . Solano. The police had no information that a crime of violence was about to occur. Nastari's testimony at the suppression hearing hardly demonstrates a reasonable fear for his and his partner's safety from [defendant and the second man]." (Fns. omitted.)
This argument is wholly unpersuasive. As we have already discussed, Officers Nastari and Castro had far more reason to suspect defendant than defendant contends; in fact, the totality of the circumstances support the reasonable suspicion that the men they encountered on Laskie Street were involved in an armed robbery. Further, as the trial court indicated, there was evidence, including Officer Chew's testimony that he gave Solano's information to dispatch and Officer Canning's account of the broadcast he heard, from which it can be reasonably inferred that Nastari knew a firearm had been involved in the robbery. Also, Nastari approached the two suspects as they sat inside a van and, therefore, it can be reasonably inferred that he did not have full view of their hands or the items around their persons as he approached. Under these circumstances, his drawing of his weapon was reasonable and not unduly intrusive to defendant, even though Officer Nastari lacked probable cause at that moment. (See People v. Glaser, supra, 11 Cal.4th at p. 366 [favorably citing a federal case in which it was held that officers "reasonably drew weapons before entering dimly lit motel room believed occupied by drug couriers].) Defendant's argument is without merit.
In light of our conclusions, we need not discuss defendant's third contention, that being that upon reversal, he must be given the opportunity to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.