People v. Lazanis

209 Cal. App. 3d 49, 257 Cal. Rptr. 180, 1989 Cal. App. LEXIS 265

Opinions

Opinion

KOLTS, J.

*

This case has been presented to us after conviction of the defendant for driving a motor vehicle while under the influence of alcohol. The conviction was affirmed by the appellate department of the superior court and, because of perceived significant questions of law was certified to this court for consideration.

Facts and Proceedings Below

In the early morning hours of February 4, 1986, the Santa Monica Police Department received a telephone call from Mr. Greenbank, a private citizen, relaying information from another person that there was a possible burglary in progress at the Bay City Van and Storage at an address on Second Street in Santa Monica. This information was transmitted in a radio broadcast by a Ms. Kujuo which was received by Officers Howe and Brown among others who proceeded toward the location. Officer Howe was the first to arrive there. She observed the situation and transmitted the following radio message: “A vehicle pulling out of there. Small white. Looks like a Toyota. Male black. Male white. Male black. Stand by. Location at the driveway. Vehicle southbound.”

Officer Linda Brown, the only witness at trial, heard Howe’s transmission, and within moments thereafter observed the defendant’s car going southbound on Second Street. When the car was stopped, defendant was at the wheel. The defendant emerged from the car, staggering slightly. He smelled of alcohol, and after failing to satisfactorily perform sobriety field tests, was cited for operating the vehicle while under the influence of alcohol.

The People offered a document which was certified as a true copy of an original police department document which noted the receipt of a telephone call by time stamp at 3:41 a.m. which bore the words “Possible 459 into business now.” Penal Code Section 459 deals with the elements of the offense of burglary. This document was received into evidence pursuant to section 1280 of the Evidence Code over objection.

It was also stipulated that Mr. Greenbank, the caller, phoned from the Carmel Hotel located at 201 Broadway in Santa Monica after receiving information from an unknown informant.

Discussion

The issue which we are called upon to determine is whether the Harvey-Madden rule relative to arrests applies to the detention which occurred in this case.

People v. Harvey (1958) 156 Cal.App.2d 516 [319 P.2d 689], arose out of a conviction for the possession of marijuana. Police officers, acting upon information supplied to them by another officer that the defendant was trafficking in drugs, conducted a surveillance of his activities. After watching him for a period of time, they placed him under arrest and recovered the contraband. The reviewing court found that the arrest was made solely in reliance on the information and briefing from the other officer. This was held to be an inadequate basis for an arrest, and invalidated the subsequent recovery of the narcotics.

People v. Madden (1970) 2 Cal.3d 1017 [88 Cal.Rptr. 171, 471 P.2d 971], dealt with similar facts. A police officer received information from two other officers that the defendant was engaged in the sale of narcotics. The arresting officer went to defendant’s home, had a discussion with the defendant at the threshold, entered the home and conducted the search. The trial court ruled that the defendant had not consented to the search, but that the officer had probable cause to enter the premises and conduct his search. The Supreme Court reversed, stating at page 1021, “. . . [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 v. Superior Court [1970] 2 Cal.3d pp. 659, 666-667 [87 Cal.Rptr. 202, 470 P.2d 11], 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.” ’ ”

The distinction between the facts in these two cases and those in the case at hand is immediately apparent. In Harvey and Madden, the information given to the arresting officer was relayed to him hours or days in advance. Here, the information was forwarded in the nature of an emergency communication, a mere minute or two before the actual stop. Further, we are dealing with a detention which gave rise to an opportunity to observe, without a search. The appearance of defendant resulted in an arrest for driving under the influence. This is in fact a case in which the stop, detention and subsequent arrest are supported by probable cause.

The more recent decision of In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], after noting at page 892 that, “It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation,” continued, “The guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution [citations], is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citation.] Because of the limited scope of that invasion in the present context, it need not be supported by the actual belief in guilt required to arrest, book, and jail an individual on a named criminal charge.”

The critical language appears at page 893: “Balancing these factors, the courts have concluded that in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.”

Let us look to the evidence that we have before us. The arresting officer, Linda Brown, was aware of a police broadcast of “a possible burglary in progress” at an address on Second Street in Santa Monica. Within moments of this broadcast a second call was received, this time from Officer Howe that a vehicle was pulling out from this location, “A vehicle pulling out of there. Small vehicle. Looks like a Toyota. Male black. Male white. Male black. Stand by. Location at the driveway. Vehicle southbound.” Applying the twin tests of Tony C„ Officer Brown was justified in stopping defendant’s automobile: there was immediacy in the time frame; the color of the small car corresponded to the color of the observed car; the car was a compact (although it was a Mazda and not a Toyota); the vehicle contained several individuals and, finally, was proceeding in a direction away from the location of the business in question.

Officer Brown was entitled to detain the defendant for further investigation. The observations which came thereafter such as the defendant’s staggering gait and alcoholic breath supplied an ample basis for the tests which resulted in a citation for driving while under the influence of alcohol.

Appellant has cited Ojeda v. Superior Court (1970) 12 Cal.App.3d 909 [91 Cal.Rptr. 145], as supporting his position that Officer Brown’s stop and observations were inappropriate. In Ojeda, a highway patrol officer received a radio communication to be on the lookout for a station wagon of a description similar to that which was ultimately stopped. The occupants of the car had purportedly participated in a robbery (a statement which was in error). The defendant was stopped, arrested and later searched on the basis of this information. The appellate court found this procedure to be improper as information which was offered as probable cause for the broadcast and subsequent arrest was without proof of the nature and origin of the report and therefore insufficient to supply probable cause for the officer’s conduct. Further, the evidence which was offered to the trial court came as the result of a search after arrest, and not as the result of mere observation on the part of the citing officer. At page 918, the court notes, ‘If someone cries out, ‘Stop thief an officer is not required to investigate to determine whether the cry in fact came from the victim or a perceptive witness, . . . before stopping the apparent fleeing perpetrator.”

Restani v. Superior Court (1970) 13 Cal.App.3d 189 [91 Cal.Rptr. 429] is a case in which a certain vehicle was suspected of involvement in a homicide. The arresting officer received a radio call that there was an all points bulletin regarding a murder suspect in a white-over-maroon Volkswagen bus. The officer observed defendant in a similar vehicle, and approached him after he had parked. When the officer told him that he was investigating a homicide, the defendant threw open the doors of the bus, and the officer observed what he identified as an amphetamine tablet. At no time did the officer request to search the van. The court held that the failure of the People to sustain its burden of probable cause for detention by failing to present as a witness the officer who initiated the original broadcast or the officer who had the conversation with a citizen witness did not vitiate the defendant’s arrest unless the arrest was an exploitation of such illegal detention. At pages 197-198, “Biddle’s observation of the amphetamine tablet in the shaving kit was not ‘tainted’ merely because petitioner might not have opened the kit but for the officer’s demand to see his identification. . . . Accordingly, if the prosecution can establish that the primary illegality was not a sine qua non or indispensable cause of the discovery of the physical evidence, but, that at worst it merely contributed to such discovery, the exclusionary rule does not apply.” This decision fails to offer comfort to defendant in the present case as his predicament arises from a stop, detention, and nonsearching observation.

The prosecution has relied upon the exhibit which was offered as a record of the Santa Monica Police Department. This document was time stamped and headed “Call for Service Record.” It is certified as a true and correct copy of an original document by Sergeant Keane of that department. It shows on its face that “second hand info poss 459 to business.” The location is the “Bay City Van and Storage 1524 Second.” The time stamp shows “’86 FEB 4 3:41.”

Conceding the hearsay nature of the contents of the exhibit, there is a stipulation in the record that a call was initiated to the department by a Mr. Greenbank, and this is a record which memorializes receipt of such a call in the Santa Monica Police Department. With this corroboration supporting the police radio transmissions, there is sufficient evidence to justify the stop of defendant’s vehicle for further investigation. In any event it puts to rest the contention that the stop was predicated upon information which may have been fabricated by a police agency.

Let us then turn to federal decisions to determine whether a different result is mandated.

The case which first considered the problem of an arrest or detention based upon a communication from one police officer to another is Whiteley v. Warden (1971) 401 U.S. 560 [28 L.Ed.2d 306, 91 S.Ct. 1031], The factually complicated situation developed in this fashion: a Wyoming police officer received a radio alert issued by the sheriff of another county which caused him to stop the defendant’s car and arrest the occupants. The radio bulletin was based upon an arrest warrant which a justice of the peace had issued predicated upon information which the sheriff had supplied. A search of the car disclosed the presence of old coins and tools which comprised the loot obtained from the burglarized premises. The court held that the sheriff responsible for the issuance of the warrant had failed to supply sufficient facts to the court to constitute probable cause, and that the later arrest and search suffered from the same defect.

However, Whiteley bears only a faint resemblance to the situation that we must deal with here. The information which the reporting sheriff obtained was based upon interviews and investigation conducted the day following the break-in. The officers arresting defendant recovered the loot after a search of the trunk of the defendant’s car, which was made after the arrest. These conditions did not exist as operative facts in the present case.

Here, the stop of defendant’s vehicle was made under the belief that defendant was participating in an ongoing crime, namely, burglary; the stop was made for the purpose of further investigation and the basis of the prosecution did not result from a search after arrest, but from the observation of defendant’s intoxicated condition; there was never a search of defendant or the vehicle as a result of the information broadcast by radio.

None of the decisions cited to this court has demonstrated a basis upon which the stop of defendant’s car is prohibited.

The leading federal decision on the subject, United States v. Hensley (1985) 469 U.S. 221 [83 L.Ed.2d 604, 105 S.Ct. 675], does not compel a different conclusion. In this case, officers in Cincinnati issued a “wanted flyer” to other police departments stating that the defendant was wanted for investigation of robbery. Two weeks later, officers of another department stopped a car that the defendant was driving and observed a handgun protruding from under the passenger seat. It was recovered, and defendant was prosecuted for a federal firearms violation.

The court found a distinction between two types of police stops: the first, dealing with one made on the basis of the person stopped being involved in an ongoing crime; the second dealing with a stop made to investigate a completed offense. While the decision in Hensley deals with the latter situation, the case at hand involves the former. The lapse of two weeks time between the commission of the crime in the Hensley stop allows investigators an opportunity to marshal the available evidence which establishes probable cause. This can hardly be expected of an officer who is acting under the belief, albeit erroneously, that she is preventing the escape of a felon fleeing from the scene of the crime.

At pages 228-229 [83 L.Ed.2d at page 612] the court notes, “A stop to investigate an already completed crime does not necessarily promote the interest of crime prevention as directly as a stop to investigate suspected ongoing criminal activity. Similarly, the exigent circumstances which require a police officer to step in before a crime is committed or completed are not necessarily as pressing long afterwards. Public safety may be less threatened by a suspect in a past crime who now appears to be going about his lawful business than it is by a suspect who is currently in the process of violating the law. Finally, officers making a stop to investigate past crimes may have a wider range of opportunity to choose the time and circumstances of the stop.”

Now to consider those questions which turn on whether the admissible evidence justifies the conduct of Officer Brown who stopped and ultimately cited appellant.

The first issue is whether the failure of the prosecution to call either the Santa Monica police dispatcher or Officer Howe to testify to observations and conduct leaves the record in such state that the stop and detention of defendant cannot be legally justified. The trier of fact heard, and the record discloses that a call was received from an identified informant who advised the department of the location of a possible crime in the process of commission. This is supported by certified documents of the police department that the call from the informant was received by the department at 3:41 a.m. on the date in question. It is clear that the radio call regarding a burglary in progress at the address was placed on the air as it was received by Officer Brown who responded to it. The next radio transmission from Officer Howe was also received by Officer Brown who stopped the car which generally conformed to the description given by Officer Howe and which contained the appellant and others. While it can be justifiably claimed that this evidence is factually weak, it cannot be said that this evidence in toto is insufficient to support the stop of defendant’s vehicle.

If it is argued that Officer Brown’s testimony relative to the amount of information which came over the air is inaccurate in part does not change the result: the record is clear as to what was accurate, namely, a small white car resembling a Toyota with four men in it was leaving the “crime scene” and proceeding south. This is factual information, and it is part of the testimony before the trial court. It is also part of the record that Officer Brown heard it.

The contention that Officer Howe’s broadcast constituted inadmissible hearsay also must fail. Whether the statements of Officer Howe are offered to prove the truth of the matter asserted need not be considered. Even if we concede that the statement is a hearsay declaration, it qualifies for admission as a hearsay exception as a spontaneous statement,¹ or a contemporaneous statement.² Certainly the statement explains the act of broadcasting under section 1240, and makes understandable the conduct of the declarant under section 1241.

But there is a much more compelling reason why this testimony is properly considered by the trial court: The parties stipulated to the admissibility of the original call of the informant and to the content of Officer Howe’s broadcast. How can a party later complain about the admissibility of evidence which he agrees should be considered?

Do the Harvey-Madden and Whiteley rules require that the officer (Howe) who made the broadcast which caused the stop of the automobile be produced in court? We think not.

Although the better practice may be to produce in court the officer who made the call, it is not the only method of justifying a stop. Admissible evidence which establishes probable cause to stop can accomplish this. As stated in People v. Orozco (1981) 114 Cal.App.3d 435 at page 444 [170 Cal.Rptr. 604], “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.” Here, any claim that the report is the result of prosecutorial imagination is countered by the existence of the police department record which shows the receipt of the burglary report moments before the observation by Officer Howe and subsequent broadcast.

The important consideration here is not whether a burglary was in fact being committed, but whether a radio call went out which justified the stop of appellant. The radioed statement of Officer Howe is before the court, and, being part of the trial record adequately supports the stop of the car whether Officer Howe is called as a witness or not. Returning to the point earlier made, how can it be proper to ignore or disregard testimony which was before the court by way of stipulation?

We find that there is adequate probable cause to support the investigatory stop in this case. However, were it deemed to be inadequate, the circumstances surrounding the stop are such that the arresting officer, with the limited information available to her was justified under Tony C. in taking the investigatory steps which followed. Her observations of the defendant’s intoxicated condition are then admissible as evidence against him at the time of trial.

Disposition

The judgment is affirmed.

Lillie, P. J., concurred.

Assigned by the Chairperson of the Judicial Council.

1 California Evidence Code section 1240:

“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [][] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

“(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (See also People v. Cooper (1967) 249 Cal.App.2d 479 [57 Cal.Rptr. 588].)

2 California Evidence Code section 1241:

“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [][] (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and

“(b) Was made while the declarant was engaged in such conduct.”