Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-071967-4
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following the denial of his motion to suppress, defendant Antonio Deshawn Owens was tried by jury and convicted of first degree residential burglary. (Pen. Code, §§ 459/460, subd. (a).) He was sentenced to serve the mitigated term of two years in prison. On appeal, he contends that the trial court erroneously denied his motion to suppress based on the Remers-Harvey-Madden rule. We affirm.
All subsequent statutory references are to the Penal Code.
The “Remers-Harvey-Madden” or “Harvey-Madden” rule is based on the holdings in Remers v. Superior Court (1970) 2 Cal.3d 659 (Remers), People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey), and People v. Madden (1970) 2 Cal.3d 1017 (Madden). These three cases established the “collective knowledge” evidentiary rule governing proof of the underlying grounds for an arrest or detention when the authority to arrest or detain has been transmitted to the arresting officer through official police channels.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
We take the facts from the transcript of the hearing on the motion to suppress.
On May 25, 2007, at about 10:50 in the morning, Officer Matthew Stonebraker received a dispatch directing him to 2500 Pine Avenue in Richmond. When he arrived, he spoke with a woman who lived across the street from the location. The witness reported that she had seen a Black male whom she did not recognize enter her neighbor’s home. The man was wearing a gray and red shirt and black pants. He had just departed from the residence and was proceeding along 27th Street. Stonebraker announced the description and probable location of the suspect over the police radio.
Officer Bashar Zeidan received the dispatch reporting a burglary in progress. He was then informed by radio broadcast from Officer Stonebraker that the suspect was proceeding northbound on 27th Street from Pine Avenue. The suspect was described as a young, Black male wearing a red shirt, blue jeans, and a hat. Two minutes after receiving the dispatch, Zeidan spotted a person matching the suspect’s description three blocks from the reported location. In court, he identified defendant as this individual.
Zeidan parked his patrol car and approached defendant. He told defendant that he needed to speak with him. Defendant asked why he needed to speak to him, and Zeidan explained that he matched the description of a burglary suspect the police were looking for. At that point, defendant turned around and ran away in the opposite direction. Zeidan used his radio to communicate that defendant was running away. Shortly thereafter, he heard a transmission from Officer Terry Ellis, stating that he had detained “the person.” Zeidan went to Ellis’s location, which was about a block and a half or two blocks away from where he had first contacted defendant. He saw that the person Ellis had detained was, in fact, defendant.
Ellis is variously referred to as officer, sergeant and acting sergeant.
Stonebraker drove the witness to the location of the detention for an identification. The witness positively identified defendant as the perpetrator. After the identification, defendant was arrested and searched and a large bundle of gold jewelry (later identified by the burglary victim as hers) was found in his right front pocket. Defendant was charged with one count of first degree residential burglary.
On January 17, 2008, defendant filed a motion under section 1538.5. By his motion, he sought to suppress the evidence seized as a result of his arrest, claiming that the arresting officers did not have a reasonable suspicion to detain him due to the lack of specific and articulable facts. At the hearing, defendant argued that his motion should be granted because Ellis did not testify and therefore there was no evidence as to why he detained defendant. The motion was denied.
On March 24, 2008, defendant was convicted after a jury trial of one count of first degree residential burglary. He was sentenced to two years in state prison. This appeal followed.
DISCUSSION
I. Standard of Review
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. 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. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) “We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so.” (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716; In re Lance W. (1985) 37 Cal.3d 873, 886; see also Cal. Const., art. I, § 28, subd. (d).)
II. The Remers-Harvey-Madden Rule
The Remers-Harvey-Madden rule stipulates 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.]’ ” (Madden, supra, 2 Cal.3d 1017, 1021.) As the court in Remers explained: “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.]” (Remers, supra, 2 Cal.3d 659, 666–667.)
The Remers rule is commonly invoked where the authority to arrest rests on information obtained through a police dispatcher or from an anonymous tip. (See, e.g., People v. Orozco (1981) 114 Cal.App.3d 435 (Orozco); see also People v. Armstrong (1991) 232 Cal.App.3d 228, 241; People v. Johnson (1987) 189 Cal.App.3d 1315, 1320.) In these situations “[t]he Remers-Harvey-Madden rule only requires prosecution proof that information justifying the arrest was actually given to the police officer who furnished it to the arresting officer, i.e., proof that the source of the information on which the arrest was based was ‘ “something other than the imagination of an officer” ’ who did not testify. [Citation.] The prosecution must simply show that the officer furnishing the information generating the arrest had probable cause to believe the arrest was justified.” (Armstrong, supra, at pp. 245–246.)
Defendant argues that the motion to suppress should have been granted because the prosecution failed to satisfy its burden under the Remers-Harvey-Madden rule when Officer Ellis failed to testify. We disagree.
While it is true Ellis did not testify, we fail to see how this failure, standing alone, implicates the problem that the Remers-Harvey-Madden rule is designed to remedy. “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.” (Orozco, supra, 114 Cal.App.3d 435, 444.) In our view, there was no Remers-Harvey-Madden problem in the present case because Stonebraker, who provided the information that led to defendant’s arrest, testified at the hearing and described how he obtained that information from the named percipient witness. Defendant concedes Stonebraker had sufficient information to support the detention. Moreover, Zeidan testified regarding his initial encounter with defendant, as well as the circumstances surrounding the subsequent detention. Thus, the prosecution established that the information leading to defendant’s detention was derived from “something other than the imagination of an officer . . . .” (People v. Adkins (1969) 273 Cal.App.2d 196, 198.)
We also disagree with defendant’s assertion that there was “no evidence” regarding what Ellis knew prior to detaining defendant. Both Stonebraker and Zeidan testified that they transmitted information regarding the suspect over their radios, and both had received broadcast information from the dispatcher. Given the short span of time between Zeidan’s alert and Ellis’s detention of defendant, circumstantial evidence amply supports the conclusion that Ellis heard these transmissions and detained defendant in close proximity to Zeidan’s initial encounter as a result. This conclusion is further supported by Zeidan’s testimony that Ellis used the radio to report that he had detained “the person” not “a person.” We also observe the trial court made the express finding that Ellis “was in radio contact with the other officers within seconds of detaining the defendant, and, therefore, I think it’s reasonable to infer that the detention of the defendant was based on his receipt of radio traffic from Officer Stonebraker.”
People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553–1556 sets forth an interesting summary of California cases concerning how the collective knowledge of law enforcement officers can be used to justify an arrest or detention.
Defendant claims Ellis’s statement that he had detained the suspect was hearsay, admissible only for its effect on Zeidan, and not as evidence that Ellis actually made the radio call, was using the radio, or had any information regarding defendant. However “Evidence of an out-of-court statement is . . . admissible if offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in dispute.” (People v. Davis (2005) 36 Cal.4th 510, 535–536.) An out-of-court statement that is not offered for the truth of the matter does not present a hearsay problem because the trier of fact may consider the evidence on a relevant issue without needing to determine whether the facts contained in the statement are true or false. (People v. Turner (1994) 8 Cal.4th 137, 189, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) While Ellis’s statement was not admissible for the proposition that he had, in fact, detained the suspect, it was evidence that Ellis was in radio contact with the other officers. As such, it was admissible as nonhearsay evidence. (See Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596; People v. Williams (1992) 3 Cal.App.4th 1535, 1541–1543.)
Defendant also relies on Lockridge v. Superior Court (1969) 275 Cal.App.2d 612 for the proposition that Ellis’s failure to testify rendered the detention invalid. Defendant’s reliance is misplaced. In Lockridge, an arrest was held to be without probable cause because it was not shown upon what information the arresting officer had acted. (Lockridge, supra, at p. 619.) The present case, however, does not concern probable cause for an arrest, but rather whether Ellis had a reasonable suspicion defendant was involved in criminal activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Secondly, the arresting officer in Lockridge was not identified, and the record on appeal was devoid of any evidence, direct or circumstantial, as to how the arrest occurred. (Lockridge, supra, at p. 619.) It is likely that had evidence been offered indicating the officer had received a radio broadcast of pertinent information from a dispatcher or from another officer in the field prior to making the arrest, the arrest would have been held good. Here, sufficient circumstantial evidence was introduced to support the inference that Ellis’s decision to detain defendant was based on his having received information from Stonebraker and Zeidan and probably the dispatcher. The information received was sufficient to justify defendant’s detention.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.