Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR273183
Haerle, J.
I. INTRODUCTION
After the trial court denied two motions to suppress brought by respondent under Penal Code section 1538.5 (section 1538.5), he pled no contest to two counts in the information filed and was placed on three-years probation by the superior court. He appeals, claiming that the trial court erred in denying his motions to suppress; we disagree, and hence affirm his conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
Early in the morning of January 11, 2010, more specifically at 12:12 a.m. on that morning, Officer Brent Pucci of the Fairfield Police Department was driving his marked patrol car near the corner of Daniel Street and Sunset Avenue in that city. He was driving with the lights of his patrol car off because he was “looking for a parolee at large that lived” on a street that terminated at Daniel Street. As he was driving in that location, he observed a “flash of brake lights” coming from a Saturn automobile parked on Daniel Street.
All further dates noted are in 2010.
Pucci then saw a man exit from the driver’s side of the Saturn; it was appellant. But appellant did not walk to any of the residences close to where he had parked the Saturn but, instead, walked to the intersection of Daniel Street and Sunset Avenue, crossed Sunset Avenue, and then turned north along the sidewalk of that street, in the course of which he passed several empty parking lots.
Pucci testified that his suspicions were aroused by appellant’s actions and route for several combined reasons. One reason was that “Saturns are a common vehicle that are... stolen.” Another was that appellant was, after midnight, walking a long distance from where he was parking; yet another reason was that, in his experience, criminals commonly “park stolen vehicles in different locations than where they reside.... [¶]... They park on off-street locations, as an opportunity to obscure the vehicle, and also prevent any police investigation from leading to a possible suspect.” Another reason for suspicion was that appellant did not even park on the street to which he was going, i.e., he parked on a “secluded street, ” i.e., Daniel Street, but then walked and turned onto Sunset Avenue.
In light of these combined facts, Pucci suspected that the Saturn appellant had parked might well have been a stolen vehicle. He thus activated his patrol car’s lights, stopped appellant, and asked him to supply “some form of identification.” However, appellant “stated he had none” but “verbally identified himself” as “Moran Lewis” and also supplied his date of birth as October 15 or 16 of 1985. Pucci called this information into the Fairfield Police Station dispatcher, a process he testified was a “common practice for police officers to do.”
The dispatcher radioed back that “there was a real person by the name of Moran Lewis, ” but the date of birth appellant gave to Pucci was “off by one day” and there was also a substantial “discrepancy in height” between the dispatcher’s information regarding Lewis and Pucci’s observations of appellant. These two factors “caused me concern, ” Pucci testified. Pucci then asked appellant for his driver’s license number and his address on that license or “his last known address.” Appellant responded that he did not know either.
Based on these circumstances, Pucci determined it was necessary to detain appellant and search him for identification, which he did. Pucci located a “California I.D. card” in one of appellant’s pockets; that card contained appellant’s picture and correct name and date of birth. Pucci then arrested appellant for providing false information. He then gave the information regarding appellant’s correct identification to his dispatcher, who advised that appellant was “currently on Solano County probation with [a] search and seizure clause.” A subsequent search of the parked Saturn (a search conducted by another officer) revealed a “baggie” containing cocaine base.
On January 13, the Solano County District Attorney filed a complaint against appellant; count one alleged possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). Count two alleged giving false information to a police officer in violation of Penal Code section 148.9, subdivision (a).
On January 19, appellant filed a motion to suppress under section 1538.5.
On January 26, the magistrate conducted a preliminary hearing and also heard the motion to suppress, including the evidence noted above. At the conclusion of that hearing, it held appellant to answer.
On February 1, the district attorney filed an information charging appellant with the same two counts.
On March 22, appellant filed a renewed motion to suppress. That motion was heard and denied by the superior court on April 9. Appellant then pled no contest to both counts of the information.
On May 21, the superior court suspended imposition of sentence and placed appellant on probation for a term of three years. Three days later, appellant filed a notice of appeal.
III. DISCUSSION
In his briefs to us, appellant raises two issues, namely (1) whether Officer Pucci has reasonable cause to stop and detain appellant, and (2) whether, under the “Remers-Harvey-Madden” rule, it was necessary for the prosecution, at the preliminary hearing, to produce supportive evidence, i.e., testimony from the dispatcher verifying Pucci’s testimony about the information the latter received from the dispatcher regarding the description and date of birth of Moran Lewis. We find neither of appellant’s arguments to be persuasive, and hence affirm the judgment of conviction.
Remers v. Superior Court (1970) 2 Cal.3d 659 (Remers); People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden).
We will deal first with appellant’s detention by Officer Pucci. As our Supreme Court has recently reiterated: “ ‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied 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.] On appeal we consider the correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons for reaching its decision. [Citations.] [¶] ‘The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] “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.” [Citation.]’ ” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
Regarding the initial stop and detention of appellant, the law is clear that a person may be detained when an officer has a reasonable suspicion that criminal activity is afoot and that the person detained might be connected with that activity. (Terry v. Ohio (1968) 392 U.S. 1, 30.) However, the officer “ ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ ” his action. (People v. Glaser (1995) 11 Cal.4th 354, 363.) This is a “totality of the circumstances” evaluation, based on the officer’s training and experience. (United States v. Cortez (1981) 449 U.S. 411, 417–418.)
As the United States Supreme Court has recently reiterated: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot.” ’ [Citations.] [¶] When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.] Although an officer’s reliance on a mere ‘ “hunch” ’ is insufficient to justify a stop [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard [citation].” (United States v. Arvizu (2002) 534 U.S. 266, 273–274 (Arvizu); see also People v. Dolly (2007) 40 Cal.4th 458, 472 (conc. opn. of Kennard, J.); People v. Osborne (2009) 175 Cal.App.4th 1052, 1058-1059.)
Officer Pucci, in his testimony at the preliminary hearing, noted three factors that, in combination, caused him to decide to stop appellant and ask him for identification: (1) the time of night, i.e., after midnight; (2) the fact that appellant was driving a Saturn, a car which Pucci testified is “a common vehicle that [is]... stolen;” and (3) the fact that, after parking the Saturn, appellant did not enter any of the nearby residences, but walked a long way away from the parked Saturn, turned onto another street, and in so doing passed many other available parking spaces.
In his briefs to us, appellant argues that none of these factors provides a reasonable basis for a detention of a person. But, as the Arvizu court cautioned, a reviewing court should not apply a “divide-and-conquer” analysis in determining if the officer’s conduct was reasonable, because factors that by themselves are “ ‘quite consistent with innocent’ ” activity may collectively amount to reasonable suspicion. (Arvizu, supra, 534 U.S. at pp. 274–275; cf. also People v. Souza (1994) 9 Cal.4th 224, 241 [time of night a pertinent factor]; Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509-510 [time of night plus loss of traction by appellant’s vehicle sufficient factors]; People v. Ledesma (2003) 106 Cal.App.4th 857, 866 [place a car is parked a pertinent factor].)
Under the standard of review noted above, we find the action of Officer Pucci in stopping and detaining appellant and asking him for identification to be reasonable and proper under the “totality of the circumstances” test noted above.
We also find appellant’s reliance on the Remers-Harvey-Madden rule to be misplaced. That rule was defined by our Supreme Court many years ago thusly: “We held in People v. Lara, 67 Cal.2d 365, 374 that, although an officer may make an arrest based on information received through ‘official channels, ’ the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony. We reaffirmed this principle in the recent case of [Remers, supra, 2 Cal.3d at pages] 666–667 where we pointed out: ‘It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, “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.] To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citations.] “If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; ‘reasonable cause’ or ‘reasonable grounds, ’... could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.” [Citation.]’ ” (Madden, supra, 2 Cal.3d at p. 1021, emphasis added); see also, defining the basis and scope of the Remers-Harvey-Madden rule: In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1642-1643 (Eskiel); People v. Alcorn (1993) 15 Cal.App.4th 652, 658 (Alcorn); People v. Armstrong (1991) 232 Cal.App.3d 228, 244-245 (Armstrong); People v. Lazanis (1989) 209 Cal.App.3d 49, 59; People v. Johnson (1987) 189 Cal.App.3d 1315, 1319-1320 (Johnson); People v. Orozco (1981) 114 Cal.App.3d 435, 444-445 (Orozco); see also 4 Witkin, Cal. Criminal Law (3d ed. 2011 Supp.) Illegally Obtained Evidence, § 187.)
We have no difficulty in concluding that the trial court was correct in denying appellant’s motion to suppress because the prosecution did not call as a witness the police dispatcher to confirm that he (or she) had, indeed, supplied Officer Pucci with the identification information regarding one Moran Lewis.
In the first place, this is not the sort of factual circumstance to which the Remers-Harvey-Madden rule applies. That rule applies when the critical information provided to the arresting officer was “originally furnished” by an officer not called to testify. Thus, in Remers, the arresting officer was “informed by other officers that petitioner was selling dangerous drugs.” (Remers, supra, 2 Cal.3d at p. 663.) In Madden, two months before the appellant was arrested, the arresting officer had received information from another officer that appellant “was peddling narcotics from his residence.” (Madden, supra, 2 Cal.3d at p. 1019.) In Harvey, supra, 156 Cal.App.2d at page 519, the arresting officers had been “told that appellant had been under surveillance by the department for some time and that he was believed to be dealing in narcotics.” Finally, in the more recent Eskiel case, there had been a police radio broadcast report of a gang fight “involving 10 to 12 Black persons.” Subsequent to receiving this general broadcast, the officers stopped appellant some distance away from the reported fight, as he and three other Black persons appeared to fleeing the area, and found cocaine on his person. (Eskiel, supra, 15 Cal.App.4th at pp. 1641-1642.)
This case is entirely different: Officer Pucci was not simply a recipient of either widely broadcast, voluntarily passed-along, rumored, or “understood” information regarding this appellant. Rather, he was the person who called into the police dispatcher and asked for specific information, i.e., whether the official police files contained information regarding a person named Moran Lewis and, if so, the specifics of that information. According to the record before us, Pucci received specific responses from that dispatcher, including the date of birth and physical description of Moran Lewis. No case we have found, and none cited to us by appellant, holds that such a specific inquiry, initiated by the detaining officer to the dispatcher and promptly responded to by the latter, triggers application of the Remers-Harvey-Madden rule.
If, indeed, that rule applied in cases such as this, the necessity of providing police department dispatchers as supporting witnesses would substantially increase. For example: (1) When an officer sees a car that he or she has reason to suspect might be stolen and calls in to ask the dispatcher to check the license plate of that car, the latter does so and replies that, indeed, the car had been reported as stolen, and an arrest of the driver is subsequently made, must the dispatcher be called to the stand to confirm his or her radio response? (2) When, during the night, an officer passes a broken window in a store in a commercial district, and calls the dispatcher to ask if there had been a report of a triggered alarm in that store, gets an affirmative answer, and then goes into the store and arrests the burglar, must the dispatcher be called to the witness stand? Clearly, the common-sense answers to these questions are in the negative, but sustaining this appellant’s argument for application of the Remers-Harvey-Madden rule here would point in the opposite direction.
There is also a second basis for our conclusion regarding this rule: much authority published since those three cases were decided makes clear the limitations of its “rule.” Perhaps the clearest summary of these limitations was provided by our colleagues in the Sixth District in Johnson: “The line of cases represented by [Harvey], supra, 156 Cal.App.2d 516, and [Madden, supra, ] 2 Cal.3d 1017, holds that: ‘[A]lthough an officer may make an arrest based on information received through “official channels, ” the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.’ [Citations.] [¶] ‘ “[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... evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony....” [Citations.]’ [Citation.] [¶] The purpose of the rule is to ensure that ‘ “the source of the information is something other than the imagination of an officer who does not become a witness.” [Citations.]’ [Citation.] ‘As the Remers case itself says, the conduct of the officers on the scene is beyond criticism. They obviously have to act on the basis of what they are told by the dispatcher or their superiors. The whole point of the Remers rule is to negate the possibility that the facts which validate the conduct of the officers in the field are made up inside of the police department by somebody who is trying to frame a person whom he wants investigated. [¶] The best way of negating “do it yourself probable cause” is to have the officer who received the information from outside the police department testify, but that is not the only way.’ [Citation.]” (Johnson, supra, 189 Cal.App.3d at p. 1319; see also to the same effect: Armstrong, supra, 232 Cal.App.3d at pp. 245-246 [a decision of this court]; Alcorn, supra, 15 Cal.App.4th at p. 657; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553.)
But perhaps the most significant of the recent authority regarding the limited scope of the Remers-Harvey-Madden rule is In re Richard G. (2009) 173 Cal.App.4th 1252. In that case, two Oxnard police officers on a “routine patrol” around midnight received a “radio dispatch that two males were causing a disturbance outside a residence” on a street in that city. The dispatcher also described the clothing the two men were wearing and the direction in which they were headed. The patrolling officers went to that location and promptly saw two men and two women walking toward a park across the street from the pertinent residence; the men “were wearing clothing that identically matched the description given in the radio dispatch.” After a major altercation, the two males were detained and appellant Richard G. arrested. The latter then filed a “motion to suppress evidence of his statements and conduct during the detention” based, among other things, on a Harvey-Madden objection. The trial court permitted the prosecution to overcome this objection by allowing the arresting “officers to describe the radio dispatch they heard and responded to.” (Id. at p. 1256.)
The Richard G. court rejected appellant’s contention that the Remers-Harvey-Madden rule required the trial court to grant his motion to suppress. It explained: “Here there was no ‘manufacture’ of information. The information received by the police dispatcher was radioed to multiple officers in multiple patrol cars and it provided detailed descriptions of the two suspects. Absent 1. the officer himself 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 or near the place and time the officers saw appellant and his companion matching the detailed descriptions. [¶] 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. [Citations.] Of course, it is theoretically possible for officers to ‘manufacture’ probable cause or reasonable suspicion. Stripped of polite euphemism, this means we acknowledge that officers could commit the crime of making a false report of a criminal offense. [Citation.] But this prospect seems remote, given their resulting exposure to criminal prosecution, civil liability and administrative sanction, including dismissal from the police department. [¶] ‘When the reason for a rule ceases, so should the rule itself.’ (Civ. Code, § 3510.) When the judiciary can reasonably determine that no evidence has been manufactured, there is no reason for strict compliance with the letter of the ‘Harvey-Madden’ rule. We point out, of course, that there is a good reason for the ‘Harvey-Madden’ rule and that its requirements can plainly and easily be met by simply calling the police dispatcher as a witness at the suppression hearing. [Citation.] The judiciary does not want to curtail Fourth Amendment rights absent verifiable information justifying the intrusion. We must also note that, in ‘Harvey-Madden’ cases, the constable has not blundered. [Citation.] It is the constable’s lawyer who has, perhaps, blundered by not producing in court the recipient of the original telephone report. Granting a motion to suppress in these circumstances would be to give a defendant immunity for crime based solely on a prosecutor’s failure to comply with the hearsay rule. To say that this is a heavy price to pay for enforcement of the Evidence Code is an understatement.” (Richard G., supra, 173 Cal.App.4th at pp. 1259-1260.)
After so holding, the Richard G. court specifically disapproved of the Sixth District’s ruling in Eskiel. (Richard G., supra, 173 Cal.App.4th at p. 1260.)
We agree with both the analysis and sentiments of Richard G. Thus, both because (1) the facts of this case do not trigger application of the Remers-Harvey-Madden rule and (2) that rule has, and should have, reasonable limitations, we agree with the trial court’s ruling on this issue, also.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
Although Richard G. was relied on by the magistrate in his ruling denying appellant’s first motion to suppress, and cited in both parties’ briefs to the trial court on appellant’s second motion to suppress and in both of appellant’s briefs in this court, it is, curiously, not cited in respondent’s brief to us.