Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 193093
Banke, J.
Defendant Darryl Jones appeals from his conviction following a guilty plea to one count of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). He contends the trial court erred in denying his motion to suppress. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Background
In May 2004, San Francisco Police Department (SFPD) patrol officers received information about a series of robberies occurring in the Northern and Park Police Districts. The suspected perpetrator was described as a Black male wearing dark clothing and a dark colored mask, and using a “Tech 9” weapon. On May 28, 2004, SFPD Officers Kallsen and Nakano stopped a vehicle that matched the description of an automobile believed to have been used in connection with the robberies. They arrested the driver, Melvin Dandridge, and the occupant-defendant-as suspects in the robberies. In a subsequent search of the vehicle, officers seized a nine-millimeter semiautomatic handgun and a mask.
The Intratec TEC-9 is a type of semiautomatic pistol defined by law as an assault weapon. (§ 12276, subd. (b)(4).)
An information filed August 31, 2004, charged defendant with four robberies, the first on May 26, 2004, and the other three on May 28. Specifically, he was charged with four felony counts of second degree robbery in violation of section 212.5, subdivision (c), each including an allegation defendant had personally used a nine-millimeter semiautomatic handgun in the commission of these offenses within the meaning of section 12022.53, subdivision (b). It was further alleged defendant had been convicted of prior, serious felonies between September 1985 and June 1994. (See §§ 667, subds. (A), (d) & (e), 1170.12, subds. (b), (c).)
On October 17, 2005, defendant filed a motion to suppress, claiming he was unlawfully detained and arrested and the search of the car was also unlawful. The evidentiary hearing on the motion commenced December 28, 2005, continued on several other dates, and concluded April 28, 2006. On the latter date the trial court denied the motion, remarking that it found the “the activities of the officers to be reasonable.”
On January 27, 2009, the trial court granted the prosecution’s request to amend count 1 of the information to state a different felony offense-assault with a semiautomatic firearm. (§ 245, subd. (b).) Pursuant to a negotiated disposition, defendant pleaded guilty to this new offense, and admitted two of the allegations of prior, serious felony convictions. The court accepted defendant’s guilty plea and admissions, and granted the prosecution’s request to dismiss the remaining counts and allegations. On February 10, 2009, the trial court, consistent with the negotiated disposition, imposed a 19-year prison sentence, awarding a total of 2, 064 days of presentencing custody credits.
Defendant’s appeal followed, limited to review of the order denying his motion to suppress. (§§ 1237, subd. (a), 1237.5, subd. (a), 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(a)(1), (b)(4)(A).)
Discussion
A. Introduction
In reviewing the denial of a motion to suppress, we accept the trial court’s express or implied factual findings when they are supported by substantial evidence, but determine independently, on such accepted findings, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924; People v. Leyba (1981) 29 Cal.3d 591, 596-597.) The trial court here made no express findings, remarking only that it “believed the testimony” of the SFPD officers who testified at the hearing. Where, as here, the trial court’s findings are implied, we review the testimony in the light most favorable to the court’s ruling, drawing all reasonable, favorable inferences in making our independent determination of whether the officers’ conduct was reasonable under the Fourth Amendment. (See People v. Colbert (2007) 157 Cal.App.4th 1068, 1072.)
B. Defendant’s Detention and Arrest
Defendant contends there was insufficient basis to either detain or arrest him, rendering both in violation of the Fourth Amendment. As to his detention, defendant asserts Officers Kallsen and Nakano had no objectively reasonable basis to suspect he might be involved in criminal activity. He contends the officers relied solely on a previously disseminated description of the vehicle in which he was riding, and asserts that description, provided by Officer Phillips, was based on nothing more than Phillips’s “hunch” the vehicle was involved in the robberies. Defendant claims there was nothing suspicious about the vehicle when Kallsen and Nakano stopped it, and the officers saw no “corroborating” evidence suggesting the vehicle was linked to the crimes. As for his arrest, defendant similarly contends the “collective knowledge of the police” that had been broadcast or disseminated to Kallsen and Nakano was insufficient to provide probable cause.
A detention is reasonable under the Fourth Amendment when the detaining officer can articulate specific facts that, in the totality of the circumstances, provide some objective manifestation the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) A warrantless arrest is reasonable under the Fourth Amendment when it is supported by probable cause-that is, when the facts known to the arresting officer would persuade a person of reasonable caution the person to be arrested is guilty of a crime. (See § 836, subd. (a)(2); 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 reasonable suspicion to detain and 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 a detention and 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. (Ibid.)
At the hearing on defendant’s motion to suppress, the following evidence was adduced: On May 7, 2004, at about 11:20 p.m., SFPD Officer Moreno and his partner responded to a dispatch concerning a robbery with a gun. There were two male victims. One, Mr. Lang, described the suspected perpetrator as a Black male, approximately 6 feet 4 inches tall and 250 pounds, wearing a black hooded sweat shirt with jeans, and a cloth mask covering the lower part of his face. The other victim, Mr. Owens, gave the same description. The suspect, who was holding a gray semiautomatic gun with a clip, approached the victims as they were walking south on Cole Street toward Grattan Street. The victims complied when the suspect told them to move back into a driveway and then demanded their money.
Officer Moreno also interviewed a witness, Mr. Donohoe, who said he had been parking on the corner of Cole and Grattan Streets, and saw a “black Mustang” double-parked on Grattan Street just west of Cole Street. He saw a Black male passenger exit the vehicle and walk to the intersection where he turned north onto Cole Street. The man had “something”-Donohoe was not sure what-in his right hand. Donohoe got out of his own vehicle and walked in the same direction on Cole Street, where he saw the same Black male standing in a driveway with his back turned, making some gestures. The male then headed south on Cole Street and west on Grattan Street, and got back into the double-parked Mustang.
Moreno sent out a computer assisted dispatch (CAD) that included a description of the suspect vehicle as an older black Mustang, and a description of the suspect as a Black male, over six feet tall and heavy-set, approximately 30 years old, wearing a black hoodie and dark pants.
Officer Moreno responded to second dispatch concerning a robbery with a gun 10 days later, on May 17, 2004, at approximately 11:30 p.m. The victim, Mr. Noonan, had been walking south on Ashbury Street toward its intersection with Fell Street. He heard someone running up behind him and turned. A male approached, put a gun to his head and told him to get on the ground. Noonan complied. He saw from the man’s hands that he was Black. A witness across the street, Mr. Federico, described the suspected perpetrator as a Black male, approximately 6 feet to 6 feet 2 inches tall and 180 pounds, approximately 25 to 30 years old, holding a dark gun with an extended clip-possibly a TEC-9-and wearing dark-colored shirt and pants and a ski mask. After the robbery he saw the male run north on Ashbury Street, then east on Hayes Street, where he got into the passenger seat of a “black sedan with tinted windows, ” which then drove out of sight. Federico described the vehicle as “possibly” a Caprice or Impala.
During this same period, SFPD Inspector Ragona was assigned to investigate a series of robberies that had been reported in the Northern and Park Police Districts during the period of May 6 to May 19, 2004. His investigation included five robberies, including the robberies to which Officer Moreno responded on May 7 and 17. On May 19, Ragona issued a teletype entitled “Tech 9 Semiauto Robbery Series–Attention Northern and Park Stations, ” describing one suspect and two possible suspect vehicles. The suspect was described as a Black male, 28 to 35 years old, 6 feet to 6 feet 4 inches tall, 200 to 250 pounds, with a “paunchy, not-athletic build.” The possible suspect vehicles were described as a black Ford Mustang with a matte finish and red trim, and a black Chevrolet Malibu or Caprice. On May 20, Ragona put together a two-page robbery series sheet with this information.
On May 24, 2004, at 11:20 p.m., SFPD Officers Zhang and Oshita went to 575 Pierce Street, near its intersection with Hayes Street. According to Zhang, their lieutenant had previously read to them information from a teletype-by reasonable inference that which Inspector Ragona had disseminated a few days earlier-concerning the series of robberies involving a male suspect with a gun. At the scene, the two male victims told Officer Zhang they had been sitting in a vehicle when the suspected perpetrator walked up, pointed a gun at them, and demanded money. Mr. Motta described the suspect as a male, 6 feet 3 inches tall, with a dark or black mask and gloves that disguised his ethnicity, and dark clothing, and Mr. Jordan gave a similar description. They said the suspect had run south on Pierce Street (toward Fell Street) until he was out of sight.
Officer Oshita interviewed a witness, Mr. Low, who said he had been double-parked on Pierce Street at the time of the robbery, and had seen a vehicle parked down the block at the corner of Pierce and Fell Streets with its lights off, leaving at a “high rate of speed all of a sudden.” The corner had been dark, but Low thought the vehicle might have been a Pontiac Grand Prix. Oshita relayed this vehicle description to dispatch. Zhang regarded the vehicle as a match for the suspect vehicle described in Ragona’s teletype because it was a “dark American vehicle.”
SFPD Officer Tuvera responded to a dispatch concerning a robbery on May 26, 2004, at about 9:30 p.m. He was directed to the 1300 block of Hayes Street, between Broderick Street and Divisadero Street. The victim, Mr. Racanelli, described the suspected perpetrator as a Black male wearing a ski mask with eyeholes and mouth hole, large and perhaps somewhat overweight, wearing a black hooded sweat shirt and dark jeans.
The robbery of Mr. Racanelli on May 26, 2004, was the first of the four robberies with which defendant was charged in the original information.
At about the same time on May 26, 2004, SFPD Officers Phillips and Gamboa were patrolling the 1300 block of Grove Street. Phillips there observed a vehicle pull away from the curb “at a high[er] rate of speed than usual [for] someone... exit[ing] from a parking spot on the side of the road.” The officers followed the vehicle, which went east on Grove Street, north on Divisadero Street, east again on Fulton Street one block north, south on Scott Street one block east, then east again on Hayes street. They took down the vehicle’s license plate number-California 5DUY366. The officers broke off pursuit after receiving a priority dispatch concerning a robbery that just occurred at the intersection of Hayes Street and Broderick Street-by reasonable inference the same dispatch to which Officer Tuvera had responded. Phillips testified that, “in that time frame” he had received a teletype concerning a “robbery series” involving a “tech nine” semiautomatic handgun-by reasonable inference the teletype disseminated by Inspector Ragona.
Due to the proximity in time-some two minutes-between the robbery of Mr. Racanelli on Hayes Street, and the sudden departure “at a high rate of speed” of the vehicle that Phillips observed on Grove Street, both Officer Phillips and Officer Tuvera subsequently concluded the vehicle had been the means by which the suspect left the scene-a pattern consistent with at least two of the prior robberies, described above and disseminated by Inspector Ragona. This information was disseminated to other officers after Phillips “put it together” two days later.
We note the 1300 block of Grove Street, where Officer Phillips saw the vehicle leave, is parallel to and one block north of, the 1300 block of Hayes Street where the robbery occurred. (Evid. Code, §§ 451, subd. (f), 459, subd. (a).)
On May 28, 2004, in his pre-work lineup, SFPD Officer Mahoney received information from his lieutenant concerning the foregoing series of robberies. Mahoney remembered the general description of the suspect was a Black male, 6 feet 2 inches to 6 feet 4 inches tall, and around 230 to 240 pounds, wearing a black hooded sweat shirt and a mask covering the nose and mouth. He also remembered seeing Inspector Ragona’s two-page information sheet concerning the TEC-9 robbery series, and hearing, during previous shifts, broadcasts including similar information.
Later that same day, at approximately 9:50 p.m., Officer Mahoney and his partner responded to an armed robbery dispatch at the intersection of Sacramento Street and Gough Street. The victim, Mr. Duvan, described the suspected perpetrator in the similar terms: a Black male, 6 feet 2 inches to 6 feet 4 four inches tall, and between 230 to 240 pounds, wearing a black hooded sweat shirt and blue jeans, with a neoprene mask covering his nose and mouth. Mahoney broadcast this description. Although Duvan had not observed a vehicle, Mahoney included in his broadcast a suspect vehicle description of a black or dark red Chevrolet Capri or Malibu with black lettering or coloring on the bumper and with license plate number license plate 5DUY366. According to Mahoney, this description was a combination of the vehicle description provided by Inspector Ragona in his “robbery sheet, ” together with the license plate number that Officer Phillips had broadcast earlier.
When Officer Kallsen began his shift that same day, May 28, 2004, he was aware of information concerning a series of robberies in the Northern and Park Police Districts, which he had received through briefings at pre-work lineups and CAD broadcast on the radio. He and his partner, Officer Nakano, were “actively looking” for the suspect vehicle-a “dark-colored GM” vehicle with California license plate number 5DUY366. At approximately 11 p.m.-little more than an hour after Officer Mahoney’s initial response to Mr. Duvan’s robbery-Kallsen saw this suspect vehicle as it crossed Duboce Avenue from Sanchez Street to Steiner Street. The vehicle was a dark colored Chevrolet with red trim, with license plate number 5DUY366. Kallsen saw the vehicle stop after crossing Duboce Avenue, and observed the driver get out and shout someone’s name toward a building located at 8 Steiner Street. Kallsen walked over to the driver-codefendant Dandridge-and took him into custody, placing him in handcuffs. The officers asked Dandridge if there were other occupants in the vehicle, and when the he replied “his cousin” was inside, Nakano-with his weapon drawn-ordered defendant to exit the passenger seat.
Kallsen testified defendant matched the description of the suspect, which had been “[v]ery similar” in “quite a few” of the broadcasts of the different robberies. Kallsen described him as a Black male, approximately 6 feet 2 inches to 6 feet 4 inches tall and 250 pounds, wearing a black sweat shirt and blue jeans. After defendant got out of the vehicle, Nakano immediately handcuffed and patsearched him. Nakano then searched the vehicle, finding an “Uzi-type” semiautomatic under the driver’s seat, as well as a mask.
Defendant repeatedly asserts Officer Phillips had only a “hunch” the vehicle he and Officer Gamboa observed on May 26, 2004, pulling away from the curb “at a high rate of speed” was involved in the robberies, which was insufficient to detain and arrest first Dandridge and then defendant. This is not a fair characterization of the record. Phillips did not disseminate the information about the car, and particularly the license plate, until two days after he first observed the vehicle-once he and Officer Tuvera realized they had seen the car only minutes after the reported robbery of Mr. Racanelli on Hayes Street. The car fit the general description of the vehicles reported by witnesses to the prior robberies, and leaving the robbery scene by car was consistent with witness reports of the prior robberies. Phillips thus relayed information about the car he observed based on far more than a mere “hunch” it was associated with the robberies.
Based on his claim that Officer Phillips had only a “hunch” the car was associated with the robberies, defendant contends Officers Kallsen and Nakano had to see “corroborating” evidence in the field before the two officers could lawfully detain and arrest him. As we have explained above, the information Phillips shared with other officers was based on more than a “hunch.” For this reason, alone, there is no merit to defendant’s “corroboration” argument.
Furthermore, defendant’s reliance on In re Eskiel S. (1993) 15 Cal.App.4th 1638 (Eskiel S.), which he cites extensively in support of his “corroboration” argument, is misplaced. In Eskiel S., the minor made a “Harvey-Madden” challenge to hearsay evidence of the radio broadcast on which the arresting officer relied. The dispatcher was not called to testify, and the Court of Appeal held the mere fact the arresting officer saw the minor running from another officer was insufficient to permit a detention. The problem, explained the court, was an evidentiary one. “ ‘[W]hile 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.” ’ ” (Eskiel S., supra, 15 Cal.App.4th at pp. 1642-1643, quoting Remers v. Superior Court (1970)2 Cal.3d 659, 666 (Remers), quoting People v. Adkins (1969) 273 Cal.App.2d 196, 198.) “ ‘[W]hen an officer furnishes to another officer information which leads to an arrest, the People must show the basis for the former officer’s information.’ ” (Eskiel S., at p. 1643, quoting Remers, supra, 2 Cal.3d at p. 667.)
People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.
In People v. Johnson (1987) 189 Cal.App.3d 1315 (Johnson), which defendant also cites, the court explained the import of the “Harvey-Madden” rule as follows: “The line of cases represented by People v. Harvey, supra, 156 Cal.App.2d 516, and People v. Madden[, supra, ] 2 Cal.3d 1017..., holds that: ‘[A]lthough 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.’ ” (Johnson, supra, 189 Cal.App.3d at p. 1319; People v. Madden, supra, 2 Cal.3d at p. 1021; accord, People v. Rogers (1978) 21 Cal.3d 542, 547; Remers, supra, 2 Cal.3d at pp. 666-667.) “ ‘ “[I]f the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information or direction given him through police channels, the prosecution must establish in court... evidence showing that the officer who originally furnished the information had probable cause to believe that the suspect had committed a felony....” [Citations.]’ (People v. Collin (1973) 35 Cal.App.3d 416, 420.)” (Johnson, supra, 189 Cal.App.3d at p. 1319.)
“The purpose of the rule is to ensure that ‘ “the source of the information is something other than the imagination of an officer who does not become a witness. [Citations.]” ’ ” (Remers, supra, 2 Cal.3d at p. 666.) “ ‘As the Remers case itself says, the conduct of the officers on the scene is beyond criticism. They obviously have to act on the basis of what they are told by the dispatcher or their superiors. 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. [¶] 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.’ ” (Johnson, supra, 189 Cal.App.3d at p. 1319, quoting People v. Orozco (1981) 114 Cal.App.3d 435, 444 (Orozco).)
“In Orozco, an anonymous caller had reported that people were shooting out of a car. ‘The [P]eople never proved that such a call was made but they did prove that there were cartridges within four to five feet of the passenger door to the car when the police looked for them. That these cartridges were found was testified to by officers who were subject to cross-examination. The presence of the cartridges certainly supports a very strong inference that the police did not make up the information from the informant. Thus, the veracity of the dispatcher’s statement that he received a call was circumstantially proved.’ ” (Johnson, supra, 189 Cal.App.3d at pp. 1319-1320, quoting Orozco, supra, 114 Cal.App.3d at pp. 444-445.) In Johnson, the information transmitted by the police dispatcher was similarly “corroborated by what the officers observed at the scene, making it virtually impossible for the information to have been made up in the police department. The officers at the scene were thoroughly cross-examined and the court obviously believed that they, in fact, had received the dispatch as they said they did and found the evidence as they described.” (Johnson, supra, at p. 1320.)
Thus, the salient point of Eskiel S. and Johnson, and other “Harvey-Madden”cases, is that the prosecution cannot adduce evidence of police channel communications received by the arresting officer unless (a) the sources of such information testify or (b) the substance of the communications is corroborated by evidence in the field seen by the arresting officer. These cases do not, as defendant asserts, establish a substantive requirement that police channel communications must be corroborated by other evidence in the field before the arresting officer can rely on the communications to make an arrest.
Here, there is no “Harvey-Madden” issue because the prosecution called as witnesses six other officers-Officers Moreno, Zhang, Tuvera, Mahoney and Phillips and Inspector Ragona-who observed and collected the information communicated to other officers, including Kallsen and Nakano. Thus, the prosecution more than established that the source of the information communicated to Officers Kallsen and Nakano was not “the imagination” of an officer who did not become a witness. (People v. Madden, supra, 2 Cal.3d at p. 1021.)
This evidentiary showing also established a body of “collective knowledge” concerning the series of robberies in which the suspect was largely described in similar terms, and in which it appeared the suspect had, on three or more occasions, escaped as the passenger in dark or black vehicle of American make and model, a vehicle that, based on the reasonable deduction of Officer Phillips, was likely to have the license plate number 5DUY366. Defendant argues the suspect and vehicle descriptions did not all “match.” While it is true there was some variation in the descriptions, but no more than would be expected under the circumstances. What defendant disregards is that as a generalmatter the descriptions were similar and consistent. In short, the “total police activity” preceding defendant’s detention and arrest was more than sufficient to provide Officers Kallsen and Nakano with an objective basis to suspect the vehicle they spotted at 11 p.m. on May 28, 2004-because of its license place number and description-was one that had been involved in the robberies, including the robbery reported by Officer Mahoney little more than an one hour earlier. Accordingly, the officers’ initial detention of the vehicle and its occupants was constitutionally valid. (People v. Souza, supra, 9 Cal.4th at p. 231.)
Further, once defendant emerged from the passenger seat of the suspect vehicle, it was immediately apparent to Officers Kallsen and Nakano, through the collective knowledge on which they relied, that he matched the physical description provided by the victims of and witnesses to many of the prior robberies. This provided sufficient probable cause to immediately place defendant under arrest. (See People v. Celis, supra, 33 Cal.4th at p. 673.)
We note probable cause for arrest was not based solely on defendant’s similarity to descriptions of the suspect in the robbery series-a description that might apply to other persons in the area-but on the combination of this similarity with defendant’s presence in the passenger seat of the suspect vehicle.
C. Search of the Suspect Vehicle
Defendant contends the search of the vehicle in which he was a passenger was unreasonable under the Fourth Amendment because it did not come within either the “protective sweep” or the “search incident to an arrest” exceptions to warrantless vehicle searches.
We disagree. “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” (California v. Acevedo (1991) 500 U.S. 565, 580; see also Arizona v. Gant (2009) 556 U.S. ___ [129 S.Ct. 1710] (Gant) [police may search vehicle when it is reasonable to believe evidence relevant to the crime of arrest will be found].) Further, “ ‘ “ ‘when there is probable cause to believe that an automobile stopped on a highway... was itself an instrumentality of the commission of [a crime], law enforcement officers need not obtain a warrant before conducting a search.’ ” ’ ” (People v. Varela (1985) 172 Cal.App.3d 757, 760; see also People v. Weston (1981) 114 Cal.App.3d 764, 770-775.)
Here, Officers Kallsen and Nakano had information a vehicle was connected to some of the prior robberies, it was similar to the descriptions given by witnesses, and it had the same license plate number reported by Officer Phillips. The totality of the circumstances more than established a probability the car was an instrumentality of and contained evidence of the crimes. Accordingly, Nakano’s search of the vehicle, resulting in the recovery of the semiautomatic handgun and a mask, was reasonable.
That Officer Kallsen characterized Nakano’s search of the vehicle as a “protective vehicle search”-rather than a search incident to an arrest where evidence of the crime was reasonably believed to be in the car-is not determinative of the lawfulness of the search. Whether a search and seizure is lawful under the Fourth Amendment is a legal question for the court based on the operative facts; the officer’s subjective belief is irrelevant. We likewise do not need to consider whether a “protective” search would have been reasonable since defendant was under arrest and could not reach into the passenger compartment when Officer Nakano searched the car, since the search was valid as a search incident to an arrest. (See Gant, supra, 129 S.Ct. at p. 1719.)
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J.Dondero, J.