Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F08810
DUARTE, J.
Defendant Justin Thomas Ross entered a Lowe’s store near closing time and forced two customers and four employees into an office at gunpoint, where he collected money from the safe and fled. He was apprehended within the hour. After his motion to suppress evidence was denied and pursuant to a negotiated disposition, defendant pled no contest to (1) assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)) with an admission of personal use of a firearm (§ 12022.5, subd. (a)(1)), (2) kidnapping (§ 207, subd. (a)) with an admission of personal use of a firearm (§ 12022.53, subd. (b)), and (3) false imprisonment (§ 236). He was sentenced to 16 years in state prison. On appeal, he contends the trial court erred in denying his motion to suppress. He contends there was no probable cause to support his warrantless arrest. Specifically, he contends his identification was unduly suggestive and unreliable. We disagree and affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to section 1538.5, defendant moved to suppress the evidence obtained as a result of his unlawful detention and arrest, contending the arrest was made without probable cause. The following evidence was adduced at an evidentiary hearing.
At about 9:55 p.m. on October 25, 2008, Deputy David Treat responded to a call about a robbery at the Lowe’s store in Elk Grove. He contacted several witnesses. The first witness, Geoff Winford, was shopping with his wife when the suspect entered the store with a gun. The suspect put the gun to Winford’s back and directed him into an office. Winford described the suspect as a White male, “tweaker looking, ” five foot six or seven with scraggly facial hair. He wore a dark beanie, a silver or gray shirt and dark pants. Another deputy broadcast this description. In a further statement, Winford said the suspect wore sunglasses and a plaid jacket.
The second witness was Bianca Robison, a store employee. She described the robber as a White male under 25 years of age about five foot eight, with a thin build. He wore a black beanie turned inside out so the tags stuck out. The beanie had a gray stripe. He also wore a dark hoodie and jeans and was armed with a revolver.
The police set up a perimeter in a neighborhood near Lowe’s. Officer Mitchell Marquez, part of the search team, contacted a woman named Lupita. She had seen a White male coming down Glencannon Way and heard helicopters overhead. She saw the man put something in the bushes and continue south. She described this man as a White male, 18 to 25, thin, bald, and wearing dark jeans. A young boy gave the same description. Marquez broadcast this information.
Both the witnesses indicated the man got off of a bicycle at the corner and ran. Police searched the corner and found cash, a cash box, a bicycle, and two gloves.
Deputy Ian Carver was a K-9 handler who was part of the search team. He received continual updates of information during the search. He learned the subject had dumped his hat and gloves. One update placed the subject in the area of Wilmarth and Glencannon where cash, items of clothing, and a bicycle had been found.
A resident reported rustling in the bushes outside her house. The K-9 alerted to the presence of human odor and paced along the bush line. There was a struggle and defendant, a young White male with a shaved head, was found in the bushes.
Deputy Treat transported Robison to the area where defendant was found. It was dark and illuminated with car lights and law enforcement emergency lights. Treat admonished Robison that he wanted her to view a person who may not be involved. She was simply to tell him if she recognized anyone and if so, from where. At first, Robison said it was too far to see. Treat moved the squad car closer to within 15 to 20 yards of where defendant was.
Treat asked Robison if the suspect looked familiar. She responded, “Yeah, probably. Has the little punk ass facial hair.” Treat asked if defendant was or was not the guy. Robison said she would need to hear him speak as she only got to see his nose and chin as everything else was covered by his glasses and beanie. Treat said, “Okay, ” but then Robison said, “But I would feel comfortable saying yes, that was him.”
The court denied the motion to suppress.
DISCUSSION
“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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Defendant asserts the search was illegal in this case, because officers did not have probable cause to arrest him for the robbery.
Police officers may make warrantless arrests when they have probable cause to believe the person arrested has committed a felony. (§ 836, subd. (a)(3).) Probable cause to arrest “exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 410.)
“‘[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts....’ [Citation.] It is incapable of precise definition. [Citation.] ‘“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.’ [Citation.]” (People v. Celis (2004) 33 Cal.4th 667, 673.)
A police officer may generally rely on the “collective knowledge” of other law enforcement officers to establish probable cause to arrest. That is, an officer may reasonably rely on information received through official channels--from other officers within his or her department, and from other departments and jurisdictions--to support an arrest. (People v. Alcorn (1993) 15 Cal.App.4th 652, 655-656.) In such a case, the court must look to the “total police activity” to test the constitutional reasonableness of the conduct in question. (People v. Alcorn, supra, 15 Cal.App.4th at p. 656.)
The record demonstrates that probable cause existed to arrest defendant for the robbery. Defendant’s build, age, and race all matched the victims’ description of the robber. While his clothing matched only as to the jeans, the police had information that the robber shed clothing as he fled. Money and a cash box were found nearby and witnesses saw a young man with a bald head discard items. Defendant was found within an hour in a neighborhood near the Lowe’s store. With a police helicopter overhead making announcements, defendant was hiding in bushes. In addition, at the showup identification, Robison identified defendant’s “punk ass facial hair, ” which Winford had described as “scraggly.”
Defendant contends he was found a “substantial” distance from the store. The record does not reveal the actual distance, but defendant was found within the perimeter established by the police, in a neighborhood where the helicopter made announcements about the K-9 unit.
Defendant contends he could have been in the bushes because he was intoxicated. That an innocent explanation can be provided does not negate probable cause. The touchstone of reasonableness under the Fourth Amendment is sufficient probability, not certainty. (People v. Thompson (2006) 38 Cal.4th 811, 820.)
Citing various articles in law reviews and elsewhere, defendant contends the showup identification was inherently suggestive and unreliable. Defendant notes studies that show misidentification often leads to the conviction of innocent persons. He argues Robison’s identification was unreliable because defendant was in or near a patrol car surrounded by police at the identification; Robison had little opportunity to view the robber’s face; the robber had a weapon and thus Robison would have focused on that; and Robison expressed uncertainty.
“It is settled that a single person showup is not necessarily unfair and must be assessed in the light of the totality of the circumstances. [Citations.]” (People v. Bisogni (1971) 4 Cal.3d 582, 587.) “[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness-i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa (1998) 19 Cal.4th 353, 413.)
There is always a degree of suggestiveness in showup identifications because the suspect is alone. Nonetheless, the law favors showups (field identification measures) when in close proximity in time and place to the scene of the crime. (In re Richard W. (1979) 91 Cal.App.3d 960, 970.) “The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later. Furthermore, because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness. The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.” (People v. Anthony (1970) 7 Cal.App.3d 751, 764-765.)
Defendant has not shown that his identification was so unfair as to deny his constitutional rights. He has not pointed out any circumstance of suggestiveness beyond that inherent in all showup identifications. In-the-field identifications when the suspect is in the back of a patrol car or surrounded by police are admissible. (See People v. Craig (1978) 86 Cal.App.3d 905, 914.) Robison had an opportunity to observe the robber and gave the police a description. She was admonished the suspect might not be involved in the robbery.
Defendant complains Robison’s identification was qualified; she said she needed to hear him speak and had seen only part of his face. Robison initially said defendant was “probably” familiar because he had the “little punk ass facial hair.” In the context for which this identification was used, this initial tentative identification was sufficient. The showup identification was not used to prove defendant’s guilt beyond a reasonable doubt. Instead, the showup identification was but one piece of evidence to establish probable cause to arrest. For this limited purpose, given the other evidence that showed “a reasonable ground for belief of guilt, ” Robison did not need to make a positive identification; an identification that did not exclude defendant as a suspect was sufficient for probable cause.
The trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., ROBIE, J.