Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate, Gregory S. Tavill and Eric M. Nakata, Judges, Super. Ct. No. FVI801457
Doreen B. Boxer, Public Defender, Geoffrey Canty and George Taylor, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Michael A. Ramos, District Attorney, Grover D. Merritt and Paul W. Feldman, Deputy District Attorneys, for Real Party in Interest.
OPINION
KING, Acting P. J.
INTRODUCTION
Petitioner Prince Thomas, defendant below, seeks review by way of petition for writ of mandate of an order denying his motion to suppress. (Pen. Code, § 1538.5.) Review is authorized by section 1538.5, subdivision (i), of the statute. We grant the petition in part.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS
Petitioner is charged with violations of Health and Safety Code sections 11359 (possession of marijuana for sale) and 11378 (two counts; possession of controlled substances for sale). The motion to suppress was litigated prior to the preliminary hearing, and the following testimony was introduced.
Deputy Osvaldo Pelayes was on patrol when he was “assigned to a call at 16980 Nisqualli Road.” He explained that “[w]e received an anonymous call stating there were two Black males in the apartment complex selling drugs.” He further testified that the caller had reported that the sales were being conducted in the north area of the complex. The deputy then stated, “I was looking for a green Pontiac License Number 6-B-W-K-9-9-1.” He was not asked to confirm whether this piece of information had come from the anonymous caller, but later noted that when he arrived, he “observed a vehicle that was—that we were looking for in the call.” That is, the green Pontiac.
The “assigned to” language makes it clear that the call was not personally received by the officers, and all parties proceeded on this basis. At the preliminary hearing, it was confirmed that the deputy was “dispatched” to the location.
Defense counsel immediately and repeatedly objected on “Harvey-Madden” grounds. (People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden).)
Petitioner, a Black male, was standing next to the car, but alone. Deputy Pelayes approached him and asked if he could search him. Petitioner consented, and the search turned up $247 in petitioner’s pocket. Deputy Pelayes “started conducting the investigation, and I asked him about the vehicle... and asked him if it belonged to him.” Petitioner responded that the car belonged to his friend. Shortly—a “[f]ew minutes... Maybe five, ten minutes” later—a second subject came out of the apartment building while the deputy searched the area for drugs. By this time, petitioner had been placed in the back of a patrol car and was, therefore, clearly “detained,” as even the deputy admitted.
Meanwhile, the second subject was searched and a “small baggie” of marijuana was found in his pocket. Eventually, perhaps half an hour after the investigation began, the second subject told Deputy Pelayes where a bag of “drugs” could be found hidden in the landscaping, and both suspects were arrested.
After the motion was denied, the preliminary hearing proceeded, at which the People introduced evidence of inculpatory statements made by petitioner after his arrest and after he was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436.
As noted ante, petitioner renewed his motion in the superior court, where it was again denied with no additional evidence having been introduced.
DISCUSSION
This case requires that we consider two related, but analytically distinct, questions. The first issue raised by petitioner is whether the People adequately established the existence of the anonymous tip, which triggered the investigation. The second relates to the reliability of the tip. We consider each in turn.
The purpose of the “Harvey-Madden”rule is simple—“the necessity to justify total police activity, establishing probable cause for arrest [or detention] when an officer arrests [or detains] a defendant in reliance on information communicated by another officer, by proof the information transmitted to the arresting [detaining] officer was obtained (and, thus, not falsely manufactured) by the transmitting officer.” (People v. Armstrong (1991) 232 Cal.App.3d 228, 235.) The point is not to ensure that the information is true, but that it was actually received or acquired by the person transmitting it to the officers performing the actions in the field. (Remers v. Superior Court (1970) 2 Cal.3d 659, 667-667.) That is, that the information has its genesis in a third party or collected evidence, rather than springing from the imagination of a police officer like Athena from the head of Zeus.
The classic, and certainly most satisfactory, means of establishing that a tip was actually received is, of course, to have the police dispatcher who took the call testify. (In re Richard G. (2009) 173 Cal.App.4th 1252, 1260; People v. Orozco (1981) 114 Cal.App.3d 435, 444 (Orozco).) That was not done in this case.
This is easily the most satisfactory way of establishing that the tip actually existed because the proof is simple and unequivocal. Further, if the testimony is credible, the court need not conduct any weighing of factors or analysis of the sufficiency of corroboration.
However, as Orozco notes, testimony by the reporting officer or dispatcher is not the only way in which the legitimate receipt of information can be established. Thus, in that case, officers were dispatched on the report by an anonymous informant that shots were being fired at a specified location out of a cream-colored vehicle with a vinyl top occupied by several “Mexicans.” The officers found a vehicle at the scene matching the description, and ordered the (Mexican) occupants out of the car, eventually finding items linked to a recent robbery. After the occupants of the car were detained and searched, but before the items connected to the robbery were found, officers found several expended bullet cartridges on the ground near the car. Faced with a Harvey-Madden challenge to the detention, the court held that actual receipt of the information could be established circumstantially and that the presence of the described vehicle at the described location, plus the presence of the expended cartridges, established the “veracity of the dispatcher’s statement that he received a call....” (Orozco, supra, 114 Cal.App.3d at pp. 444-445.) Similar is People v. Johnson (1987) 189 Cal.App.3d 1315, 1318-1320, in which the officers’ claims that a burglary had been reported was corroborated by their on-site observations of two persons matching the description allegedly given of the burglars, and the fact that the subjects fled when hailed by police and were seen to discard small objects, which rattled like coins or jewelry.
There is perhaps a temptation to say that if a tip is falsified, it is not surprising that the officers’ findings and observations match the particulars of the tip. However, Harvey-Madden assumes that the officer in the field testifies truthfully concerning whether or not he was given information regarding a tip, and also truthfully concerning the contents of the tip (or other information) as related to him. Any lack of veracity in the officer can be tested on cross-examination; if the defense really believes that no tip was relayed, the dispatcher or relaying officer may be called and telephone logs subpoenaed. Harvey-Madden is, therefore, not concerned with the veracity of the officer in the field, but with the veracity of the dispatcher or reporting officer: Was there a tip at all?
We first note that whatever the possibilities that one officer will manufacture information, which he relays to a fellow officer in the hopes that the latter will act on it—perhaps also hoping to make it more difficult to track the information to its source or lack thereof—surely the likelihood of such misconduct is much less when it is a police dispatcher who sends the officer in the field on his errand. While a police officer may have access to information about criminals, potential crime locales, and suspects that would enable him to concoct a plausible “tip” about a targeted subject, it is far less likely that a dispatcher would be able to do so. Thus, it is certainly appropriate to evaluate the dispatcher’s veracity on the basis of the accuracy of the information allegedly received.
In this case, Deputy Pelayes testified that he was told of an anonymous call reporting drug sales at a specified location, being conducted by two Black males with a green Pontiac identified by a license plate. He found the Pontiac and, eventually, two Black males at the specified site. Narcotics were, in fact, found at the scene. Unless the dispatcher was clairvoyant (see In re Richard G., supra, 173 Cal.App.4th at p. 1259), there is no way that he or she could have provided this information and these details unless there was, in fact, a caller. We conclude that the requirements of Harvey-Madden were met.
We need not, and do not, consider whether it is equally appropriate to apply a “self-validating” analysis where the officer in the field acts on information provided by a fellow officer. We focus on the dispatcher’s lack of both motive and opportunity to fabricate a plausible “tip.”
We now turn to the question of whether or not petitioner was validly detained in light of the information conveyed to Deputy Pelayes and any observations he made at the time. As a rule, police may not base a detention on an anonymous tip unless the tip is sufficiently corroborated. Corroboration is required because an anonymous tip is by its nature unreliable: “If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity.” (Florida v. J. L. (2000) 529 U.S. 266, 275.) However, in general, corroboration by innocent circumstances is not sufficient; that is, the fact that a tip appears to be accurate in details not suggestive of illegality will not justify a detention. (Id. at p. 272; People v. Jordan (2004) 121 Cal.App.4th 544, 558.) Thus, in the former case, the accuracy of information concerning the subject’s clothing and location did not justify a detention and patdown for the reported weapon, while Jordan follows the United States Supreme Court case on very similar facts.
We are not dealing with a “public safety” issue such as that involved in People v. Dolly (2007) 40 Cal.4th 458, where the anonymous tip described a just-occurred incident, apparently gang-related, in which the suspect threatened the caller with a gun. (See also People v. Coulombe (2000) 86 Cal.App.4th 52 [report of man with a gun on New Year’s Eve in crowded restaurant].) In our view, this exception is inapplicable here; although drug sales are certainly a plague on the community, there was no immediate threat to public safety or to any particular person.
In this case, the tipster correctly informed police that a particularly described car would be at a particularly described location. However, instead of the reported “two Black males,” only petitioner fit that description in the vicinity. Although petitioner did shortly inform the deputy that the vehicle belonged to his friend (who might have been presumed to be a second Black male), the association of two Black males is not in any way “suspicious.” Even if we were to agree that Deputy Pelayes could have immediately concluded that another Black male might be nearby, this would nevertheless have been clearly of the “innocent activity” type of corroboration. There was nothing to indicate that the tipster had any information not available to someone looking out a window and noticing two men and a car—for example, the caller did not provide “predictive information” concerning the subjects’ conduct, which would suggest that the caller was familiar with their plans and habits. (See Alabama v. White (1990) 496 U.S. 325, 332.)
We are aware that conduct consistent with either criminal activity or innocent activity may be factored into the “probable cause to detain” equation. (See, e.g., People v. Daugherty (1996) 50 Cal.App.4th 275, 288.) Here, however, petitioner’s presence and conduct were in no way indicative of crime or criminal activity. He was simply standing near a car.
Even if we accept that the initial search of petitioner was consensual, the deputy found nothing more suspicious than $247 in cash in his pocket. He found no drugs, no “pay-owe” slips, no packaging material. There was no testimony that such a relatively small sum was indicative of drug sales (and it would not be easy to credit such testimony, had it been given). Thus, at the time petitioner was unquestionably detained and was no longer free to leave, Deputy Pelayes had discovered nothing indicative of criminal activity that would support the anonymous tip.
In our view, the circumstances known to Deputy Pelayes at the time petitioner was detained were legally insufficient to support the detention and investigation consisting of further questioning. Accordingly, the detention was unlawful. The remaining question is to determine what evidence must be excluded. It is clear that his inculpatory statements to police flowed directly from the unlawful detention and must be suppressed as the “‘fruit of the poisonous tree.’” (Wong Sun v. United States (1963) 371 U.S. 471, 488.) On the other hand, the record establishes that the acts and admissions of the coperpetrator were independent of the illegal detention and, with respect to the contraband pointed out by the coperpetrator and the latter’s statements, the motion to suppress was properly denied. (We do not, of course, suggest that the coperpetrator’s statements inculpating petitioner will necessarily be admissible at trial.) Furthermore, it is not possible to tell on this record whether petitioner’s identity was, or would have been, obtained had he not been detained, and we will leave this issue to be resolved, if necessary, by the trial court in accordance with the views expressed in this opinion.
DISPOSITION
Accordingly, the petition for writ of mandate is granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order denying petitioner’s motion to suppress, to enter a new order suppressing petitioner’s statements to police, and to conduct further proceedings on the discovery of petitioner’s identity, if necessary. In all other respects, the petition is denied.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: HOLLENHORST, J., MILLER, J.