Opinion
C056766
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. RODNEY EUGENE JEFFERSON, Defendant and Appellant.
Not to be Published
Following the denial of defendant Rodney Eugene Jeffersons motion to suppress evidence that he claims was the product of his being illegally detained, he pled no contest to possession of cocaine base and was sentenced to two years in state prison.
On appeal, defendant contends the trial court erred in denying his suppression motion. We disagree and shall affirm the judgment.
FACTS FROM SUPPRESSION HEARING
On April 24, 2007, at 10:54 a.m., Sacramento Police Officers Wollman and his partner received a dispatch directing them to 3808 15th Avenue to investigate a call regarding "narcotic activity in progress." The caller, a female, told the dispatcher that there were four to five Black adults, male and female, smoking and selling narcotics near her residence and that they were in and around a "brown Cadillac and a gray vehicle." The caller gave her name and a telephone number, but said that she did not want to be contacted.
Wollman arrived at 3808 15th Avenue at 11:02 a.m. and saw two parked cars, one a brown Cadillac and the other a gray vehicle. The only people he observed were three Black males sitting in the gray vehicle, with defendant occupying the drivers seat. Wollman did not see or smell any indicia of drug use, and as far as Wollman knew no one had attempted to verify the callers name or telephone number.
The officers contacted the occupants and "told them that they were being detained under suspicion of selling narcotics." Defendant first said that he did not have any narcotics, but "[t]hen kind of changed his mind" and pulled three bottles from the glove compartment, saying they contained drugs prescribed to him. He then put the bottles back in the glove compartment. The passengers were removed from the vehicle and a record check was run, revealing that one of them was on probation.
Wollman obtained the three bottles and saw that they were prescribed to defendant. However, one of the bottles had the name of the prescribed drug "ripped off." Wollman called "poison control," described the physical coding on the drug, and learned that it was generic Vicodin.
Wollman contacted the pharmacy listed as having issued the drugs and was informed that the prescriptions were legitimate for two of the drugs, but not for Vicodin. When defendant was unable to provide any information other than a claim that the Vicodin had been prescribed to him by a "Dr. Lamont," Wollman arrested him. A search of the gray vehicle revealed a baggie containing cocaine in the drivers door.
The trial court denied the suppression motion, expressly finding that the call "would be more classified as an anonymous call" and impliedly finding that the call, coupled with Wollmans observations of the defendant and his two companions inside one of the two described vehicles, constituted reasonable suspicion to justify a limited detention for further investigation.
DISCUSSION
In support of defendants contention that the trial court erred in finding reasonable suspicion for his detention, he offers two theories: (1) the trial court erred in considering the callers tip to support the detention because the People failed to "present the reporting party (or parties) who gave the alleged information [to] the arresting officer," as required by People v. Harvey (1958) 156 Cal.App.2d 516, and People v. Madden (1970) 2 Cal.3d 1017; and (2) even if properly considered by the court, the tip, coupled with Officer Wollmans observations, failed to establish reasonable suspicion for the detention. We reject both theories.
Harvey-Madden Issue
We reject defendants Harvey-Madden claim because even though he raised the issue in his written trial brief, he never obtained a ruling on it. Under such circumstances, the rule is clear: "[W]hen, as here, the defendant does not secure a ruling, he does not preserve the point. That is the rule. No exception is available." (People v. Bolden (2002) 29 Cal.4th 515, 542; People v. Mitchell (1990) 222 Cal.App.3d 1306, 1311 [defendants raising issue of illegally obtained evidence in his written motion but failing to pursue theory at suppression hearing forfeits error as issue for appeal].) Consequently, we consider all of the evidence adduced at the suppression hearing.
Lawfulness of the Detention
"An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. . . . [¶] `The guiding principle in determining the propriety of an investigatory detention is "the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." [Citations.] In making our determination, we examine "the totality of the circumstance" in each case. [Citations.] `Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip." (People v. Dolly (2007) 40 Cal.4th 458, 463.)
In support of his claim that his detention (which we agree occurred at the point where Officer Wollman informed the defendant and his companions that they were detained for drug investigation) was unlawful, defendant relies on Florida v. J.L. (2000) 529 U.S. 266 . We disagree with defendants claim and find J.L. distinguishable.
In J.L., an anonymous caller, i.e., an individual about whom "nothing is known," reported to the police "that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." (Florida v. J.L., supra, 529 U.S. at p. 268.) Officers went to the bus stop and saw three Black males "hanging out." (Ibid.) One was J.L., who was wearing a plaid shirt and was 10 days shy of being 16. (Ibid.) Aside from the tip, the officers had no reason to suspect any of the three of illegal activity. (Ibid.) J.L. was frisked and a gun was found on him. (Ibid.)
The United States Supreme Court unanimously held that the tip did not justify the detention, explaining: "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated [citation], an `anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity, [citation]." (Florida v. J.L., supra, 529 U.S. at p. 270.)
We find J.L. distinguishable. Although the trial court in this case characterized the caller as "anonymous," she was not truly so. Where an informant gives a name, and even though it is unconfirmed, the informant is not anonymous. For example, in United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, the caller gave his name, said that he was calling from someone elses cell phone, and reported that he had been threatened with a handgun by a suspect he described. (Id. at pp. 1172, 1174-1175.) The court concluded the caller was no longer anonymous once he had given his name, even though it was unconfirmed. (Id. at pp. 1174-1175.)
In U.S. v. Elmore (2nd Cir. 2007) 482 F.3d 172, the court recognized that informant classification is not a black and white issue. "[I]nformants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale. Where the informant is known from past practice to be reliable, as in [Adams v. Williams (1972) 407 U.S. 143, 146-147], no corroboration will be required to support reasonable suspicion. . . . However, when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion." (Id. at p. 181.)
In the present case, and unlike the caller in J.L., the caller gave her name and telephone number. Thus, the caller may not properly be classified as truly "anonymous." J.L. is also distinguishable because while the caller in J.L. failed to state any basis for the callers knowledge that J.L. had a gun, the caller in this case did state such a basis; namely, that there were persons near her residence that were engaging in drug activity, a statement which reasonably suggested the caller was a percipient witness to the conduct she was reporting. For these reasons we conclude that J.L. is factually distinguishable from the instant case and, therefore, not on point.
The reliability of the callers tip was also adequately corroborated because within approximately eight minutes of having received the dispatch, Wollman arrived at the designated location and observed a brown Cadillac and a gray vehicle, the latter containing three Black males. Of course the strength of the corroboration would have been greater if, as the caller reported, there had been four to five Black persons, some of whom were females, present when Wollman arrived. But, the fact that only three Black males were present does not significantly detract from the corroborative value of Wollmans observation in view of the fact that at least eight minutes had elapsed between when the caller reported the activity and when Wollman arrived at the location, which was ample time for some of the reported persons to have dispersed.
Finally, the reliability of the callers tip is further bolstered by the callers knowing that the police would deduce from her descriptions of the cars and persons at the 3808 address, coupled with Wollmans confirmation of these facts, that she likely either lived or was in the immediate area when she made the call. Being in the immediate area, the caller would know that if she was making a false police report the police had a greater chance of tracking her down and holding her accountable for the false report. (See U.S. v. Elmore, supra, 482 F.3d at p. 183 [tipsters veracity bolstered where tipster could reasonably believe that police could track her down and hold her accountable for false report].)
For the foregoing reasons, we conclude the callers tip was sufficiently corroborated by Wollmans observations to support the detention.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
ROBIE, J. --------------- Notes: The informant was personally known to the arresting officer and had provided him with information in the past. (Adams v. Williams, supra, 407 U.S. at pp. 146-147.)