Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC825218
ELIA, Acting P. J.After the trial court denied his motion to suppress evidence, appellant Nicholas Seaberry pleaded no contest to one count of receiving stolen property in violation of Penal Code section 496, subdivision (a). Appellant admitted a gang enhancement.
On May 14, 2009, the court suspended imposition of sentence, placed appellant on three years formal probation and among other conditions of probation, ordered him to serve a 10-month county jail sentence.
Appellant appeals the denial of his motion to suppress evidence by the trial court pursuant to Penal Code section 1538.5, subdivision (m) and California Rules of Court, rule 8.304(b)(4)(A). After review of the record, we find that probable cause to arrest did not exist in this case.
Procedural Background
In an information filed January 29, 2009, the Santa Clara County District Attorney alleged that appellant committed one count of buying, receiving, concealing or withholding stolen property in violation of Penal Code section 496, subdivision (a); and that appellant committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).
Appellant was arraigned on the information on February 2, 2009. Thereafter, on February 19, 2009, pursuant to Penal Code section 1538.5, defense counsel filed a motion to suppress evidence found on appellant in a search conducted when appellant was arrested, on the ground that there was no probable cause to arrest and no search warrant. Counsel asserted that in order to justify the warrantless arrest, the prosecution would have to comply with the "Harvey-Remers-Madden rule." The prosecutor filed a motion in opposition in which he asserted that because the defense had raised a "Harvey objection," the People would present sufficient witnesses to satisfy the defense objection.
The so-called Harvey-Madden rule governs the manner in which the prosecution may prove the underlying grounds for an arrest when the authority to arrest was transmitted to the arresting officer through police channels. (People v. Collins (1997) 59 Cal.App.4th 988, 993.) The rule requires 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." (People v. Armstrong (1991) 232 Cal.App.3d 228, 246.)
On March 20, 2009, the court held an evidentiary hearing on the motion. At the end of the hearing, the court denied defense counsel's motion. After sentencing, appellant filed a timely notice of appeal.
"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 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. Glaser (1995) 11 Cal.4th 354, 362.)
The facts adduced at the suppression hearing, which we summarize in the manner favorable to the trial court's ruling (People v. Martin (1973) 9 Cal.3d 687, 692), are as follows.
On November 12, 2008, San Jose Police Department detectives Woolsey and Nishita went to Valley Medical Center to meet with the victims of a robbery that had occurred earlier in the day.
With the assistance of a Spanish translator, the officers recorded a statement from one of the victims of the robbery, Eduardo Santiago, who described the attack. Santiago described an attack by three individuals; suspect one wore a black sweater and black cap and blue pants; a second individual, suspect two, who took Santiago's cell phone and keys, was taller than Santiago's five foot four inch height, was thin, and had a skinny face with a very little moustache. Santiago described the third individual, suspect three, as having short straight hair and a tattoo on his right hand; he wore a white short-sleeve t-shirt, blue shorts and red and white shoes.
Santiago identified Carlos Cofelt as suspect number one from a photographic line up. Detective Woolsey had information that Cofelt was the owner of a blue Cadillac identified as the vehicle used in the robbery.
Using the suspects' descriptions provided by Santiago, Detective Nishita prepared a B.O.L. (be on the lookout) the same day. The descriptions of the vehicle and the suspects were communicated to other police personnel through the radio, computers and oral briefings. Sergeant Leong received the vehicle and suspect descriptions at a briefing on November 13, 2008. In addition, he viewed a photograph of Cofelt and was aware that a "felony affidavit" for Cofelt's arrest was on file at the San Jose Police Department.
The B.O.L. described the suspects as "20-25 YRS WITH SHRT FADE HAIRCUTS #1 WEARING WHI T SHRT AND BLK DICKIES PANT." As to height and weight, the suspects were "505 to 507 150 TO 160."
On September 15, 2009, this court granted appellant's motion to augment the record with a printout of the broadcast message.
Around three o'clock in the afternoon on November 13, 2008, Sergeant Leong was on patrol when he saw a vehicle that matched the description of Cofelt's car on North Sixth Street, just south of Julian Street. Sergeant Leong drove up the street to get a closer look at the license plate to verify that it was Cofelt's car, but the vehicle immediately sped off; Sergeant Leong followed. Eventually, Sergeant Leong saw the car parked in the parking lot of Mi Pueblo market and confirmed that it was Cofelt's car.
Sergeant Leong saw "two male heads pop up from the roof line of the car." As the men started walking away from the Cadillac, Sergeant Leong came up to the Cadillac in his vehicle. The sergeant drove in the space between the next two rows of cars, parallel to the two men who walked east through the lot between a row of cars and the front of the market. When the men reached the end of the row of parked cars and were out in the open, the sergeant got out of his car "with the intentions of stopping them."
As soon as Sergeant Leong got out of his car and the two men made eye contact with him, "their heads went down to the floor, and they immediately made a quick turn and started to go westbound towards the front of the market."
Sergeant Leong drew his firearm and made several commands for the men to stop and sit on the ground. They hesitated momentarily and then complied. Other police units could be heard approaching at this time.
The shorter of the two males confirmed that his name was Carlos; and Sergeant Leong recognized him as Carlos Cofelt. Upon recognizing Cofelt, Sergeant Leong had both men lie on the ground until other units arrived. Then, he took both men into custody. A search incident to the arrest of appellant revealed a cell phone belonging to Santiago's brother.
At the suppression hearing, the parties stipulated that there was no warrant for appellant's arrest.
When asked by the court what information he had regarding the race and height of the suspects involved in the robbery, Sergeant Leong testified that "the descriptions were male, Hispanic males, about age 20, with short haircuts...." "So, based on the general age, the race, and the short haircuts, and the grouping and proximity" to Cofelt, he felt that appellant was "probably one of the suspects." The court pressed Sergeant Leong to be more specific about the height and weight of the suspects. Sergeant Leong replied that he believed the description in the B.O.L. was "five-seven, five-eight, something like that."
The court questioned Sergeant Leong as to why he had arrested appellant. Sergeant Leong explained, "Well, given the fact that a serious felony crime had been committed, it was a gang crime, my experience as a gang investigator, the gang members usually do hang together or associate with each other; the proximity of the crime was nearby; the crime had just occurred the previous day; he had fled with the defendant in the vehicle, stayed with the defendant walking away; and then when we made eye contact, he also looked immediately down on the ground and walked side by side with Mr. Cofelt."
The trial court found that defendant was properly detained because he met the "general parameters of the description" even though appellant was several inches taller than the B.O.L. description; and the seizure ripened into probable cause to arrest once the sergeant confirmed Cofelt was appellant's companion.
Appellant's height listed in the probation report is six feet two inches and he weighed 196 pounds.
Discussion
At the outset, appellant concedes that Sergeant Leong had a reasonable suspicion to detain him. However, he contends that there was no probable cause for his arrest.
"The federal Constitution's Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. (Cal. Const., art. I, § 13.)" (People v. Celis (2004) 33 Cal.4th 667, 673.) "When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.]" (Ibid.)
As the United States Supreme Court has explained, articulating precisely what "probable cause" means is not possible. It is a commonsense, nontechnical conception that deals with " 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " (Illinois v. Gates (1983) 462 U.S. 213, 231 [103 S.Ct. 2317] (Illinois).) The Illinois court explained: " '[T]he term "probable cause," according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion.'... While an effort to fix some general, numerically precise degree of certainty corresponding to 'probable cause' may not be helpful, it is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' [Citation.]" (Id. at p. 235.)
Our Supreme Court has explained probable cause as follows: "Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime. [Citation.] '[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, supra, 33 Cal.4th at p. 673.) "The standard of proof [for probable cause] is... correlative to what must be proved." (Brinegar v. United States (1963) 338 U.S.160, 175 [69 S.Ct. 1302].)
Thus, the resolution of this case turns on whether or not Sergeant Leong had reasonable grounds to believe that appellant was one of the two suspects that were with Cofelt when Santiago was robbed.
Respondent argues that probable cause existed because appellant matched the general description of the suspects—"gender, ethnicity, age, hair, weight and build." Appellant was located "near in time (one day) and place (three or four blocks) to the crime scene"; appellant traveled with an identified suspect for whom probable cause to arrest existed; appellant was traveling in the vehicle used in the crime; and appellant manifested apparent consciousness of guilt when he "look[ed] down upon making eye contact with the sergeant" and "immediately reversed his direction" and when he hesitated before he complied with the sergeant's commands to stop and sit. Finally, appellant did all of this in tandem with the other suspect, consistent with Sergeant Leong's experience that gang members tend to " 'hang together.' "
Certainly, our Supreme Court has held that when someone matches the general description of a suspect, officers have a reasonable suspicion that person was involved in criminal activity and could detain that person. (See People v. Harris (1975) 15 Cal.3d 384, 387-389 [detention proper where there was "general similarity" between description of burglary suspect and the defendant, who was stopped with a companion three blocks from burglarized residence]; People v. Flores (1974) 12 Cal.3d 85, 92 [detention upheld where officer possessed only general description of the suspects and vehicle used].) Here, however, although appellant fit the description of the suspect in terms of age, gender and ethnicity, his height and weight were vastly different from that of the suspects involved in the robbery—6 feet 2 inches and 196 pounds for appellant; 5 feet 6 inches to 5 feet 7 inches and 150-160 pounds for the suspects.
When a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, "a defendant's proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions." (In re Carlos M. (1990) 220 Cal.App.3d 372, 382, italics added.) In this case, however, Sergeant Leong did not encounter appellant until the day after the crime had been committed and several blocks away from the crime scene and he did not just detain appellant, he arrested him.
In re Dung T.(1984) 160 Cal.App.3d 697 , is instructive. The police were investigating the robbery of an apartment. The robbers were described as six Vietnamese males in their early twenties. They were seen driving a Dodge and a yellow car identified as a Capri. The police located the Dodge one day later. The following night, eight young Vietnamese males, one of whom was the appellant, got into the Dodge. The police stopped the car, placed the occupants in police cars, and took them back to the police station for questioning. The appellate court found that the police were justified in stopping the appellant and his companions for initial investigation and questioning. It held, however, that the police lacked probable cause to arrest the appellant for the robberies. "The police had no detailed descriptions of the robbers other than their ages and nationalities. There were eight people occupying the car when it was stopped, but only six people were involved in the robbery. Thus at the time of the stop the police did not have probable cause to believe any one of the occupants of the car, including appellant, was guilty of the robberies." (Id. at p. 713.) Here, although the police had slightly more detailed descriptions of the suspects, appellant did not fit that description being seven to nine inches taller and over 30 pounds heavier.
As to respondent's assertion that because Sergeant Leong knew that gang members "hang together" this was relevant to probable cause, we acknowledge that United States Supreme Court cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. (See, e.g., United States v. Ortiz (1975) 422 U.S. 891, 897 [95 S.Ct. 2585].) Respondent would have a stronger argument if the officer knew that Cofelt had only one person in his gang who always accompanied him.
In addition, "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation.] Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to... seize another...." (Ybarra v. Illinois (1979) 444 U.S. 85, 91 [100 S.Ct. 338]; United States v. Di Re (1948) 332 U.S. 581, 584-587 [68 S.Ct. 222] [holding that mere presence in a vehicle driven by someone suspected of criminal activity does not establish probable cause for arrest and search of the passenger]; In re Justin B (1999) 69 Cal.App.4th 879, 887 [holding no probable cause to arrest the passenger in a vehicle containing stolen cell phones].)
The mere fact that a suspect averts his eyes or even walks rapidly away from an officer on becoming aware of his presence does not authorize a suspect's arrest. (People v. Zabala (1963) 217 Cal.App.2d 550, 555.) Under "proper circumstances" evasive conduct by a suspect on the approach of a police officer can justify an arrest (People v. Privett (1961) 55 Cal.2d 698, 702), but where, as here, all appellant did was to turn and walk in the opposite direction we do not think that is enough. As one Court of Appeal pointed out more than 25 years ago, " 'it is a lamentable but undeniable fact of modern society that some of our citizens harbor a mistrust for law enforcement authority which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest [citation omitted]. Such individuals may refrain from speaking to law enforcement officials not because they are guilty of some crime, but rather because they are simply fearful of coming into contact with those whom they regard as antagonists.' " (People v. Fondron (1984) 157 Cal.App.3d 390, 399.)
In People v. Privett, supra, 55 Cal.2d 698, the California Supreme Court cited to three cases to supports this proposition: People v. Gardner (1960) 177 Cal.App.2d 43 (Gardner); People v. Williams (1959) 175 Cal.App.2d 774 (Williams); People v. Amado (1959) 167 Cal.App.2d 345 (Amado).
Respondent suggests that the" test of probable cause is not whether some strands of the rope are 'slightly frayed' but 'whether when spun together they will serve to carry the load....' " Unfortunately for respondent, where, as here, so many strands of the rope are frayed, even when spun together they cannot carry the load.
The description of the suspects in this case was so far removed from appellant's actual height and weight as to make it highly unlikely, that is objectively unreasonable to believe, that appellant was one of the suspects from the robbery. There is no dispute that Sergeant Leong had cause to conduct an investigative detention of appellant, but he did not have probable cause to arrest him at the time of the stop or even after he confirmed that appellant's companion was Cofelt. In short, the prosecution did not sustain its burden of establishing probable cause for arrest. Thus, the seizure of the cell phone cannot be justified as found in a search incident to arrest. Accordingly, the lower court erred by denying appellant's motion to suppress.
Upon the erroneous denial of a motion to suppress evidence where the conviction is based on a plea, reversal is automatic. (People v. Hill(1974) 12 Cal.3d 731,768, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5.)
Disposition
The judgment is reversed. The trial court is directed to vacate its order denying appellant's suppression motion and enter an order granting suppression of the cell phone found on appellant.
WE CONCUR: MIHARA, J., McAdams, J.
In Gardner, officers learned from several informants that one Lummie, his wife and brother, were living at a house on 56th Street to which people went to use heroin. (Gardner, supra, 177 Cal.App.2d at p. 45.) On arrival at the house, the officers walked along the house and heard running inside. One officer went to the front of the house; the other officer went to the back. The defendant opened the back door and stepped out, holding in his hand a package the size of a fist. He took a step out of the door, turned and looked at the officer, then turned around and went back into the house, pursued by the officer, who, just a few feet inside the door, grabbed hold of the defendant. (Id. at pp. 45-46.) The Second District Court of Appeal held that probable cause to arrest existed. (Id. at p. 46.)
In Williams, officers watched the door of the place where the defendant resided. They saw persons known to them to be drug addicts, enter and depart. After watching for a brief time, they knocked on the door, and "heard a swift movement toward... the location where the bathroom was located." Then, they forced an entrance (without the aid of a search warrant) and observed the defendant "rushing through the hallway to the bathroom." (Williams, supra, 175 Cal.App.2d at p. 775.) The Second District Court of Appeal held that probable cause to arrest existed because "a knock on a door of a residence is not usually followed by the resident rushing to the bathroom." (Id. at p. 776.)
In Amado, officers acting on an informant's tip went to a house where they were informed drugs were being sold. As officers approached the door, one officer saw the defendant in the kitchen. On seeing the officers, the defendant "made a movement toward his pocket and started stepping backwards and put a white piece of paper-looked to me like paper-in his mouth and started walking away from the kitchen." (Amado, supra, 167 Cal.App.2d at p. 346.) The Second District Court of Appeal held that this furtive conduct was sufficient to arrest the defendant. (Id. at p. 347.)
None of these cases are helpful to respondent's position that appellant's furtive conduct provided probable cause to arrest because they all involved furtive conduct related to the concealment of drugs.