PEOPLE v. RAMIREZ

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Raul RAMIREZ, Defendant and Appellant.

Cr. 40057.

Decided: November 25, 1981

Quin Denvir, State Public Defender, and Russell I. Lynn, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Timothy E. Cary, Deputy Attys. Gen., for plaintiff and respondent.

STATEMENT OF THE CASE

In an information filed by the District Attorney of Los Angeles County, appellant was charged with possession of phencyclidine, a violation of section 11377, subdivision (a), of the Health and Safety Code.

Appellant was arraigned and entered a plea of not guilty. Appellant's motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. Pursuant to a negotiated disposition, appellant entered a plea of guilty to the charged violation as a misdemeanor pursuant to Penal Code section 17, subdivision (b)(5). Appellant was granted probation for a period of three years on condition that he serve the first 90 days in the county jail, such sentence to run consecutively with any other time appellant was serving. Appellant appeals from the denial of his motion to suppress evidence.

FACTS

On May 29, 1980, at 12:45 a. m., Officer Gary Brown of the City of Montebello Police Department was on patrol in a one-man car traveling eastbound on Whittier Boulevard when he observed two individuals at the front of a closed tire store located in a business district. The store was located about 50 feet from a public sidewalk. The nearest light was about 50 feet from the store.

Brown could see no reason for anyone to be there at that time of the night because all the businesses were closed. The two persons in question were apparently not on a route that would take them to any sidewalk, open business or parked cars. Additionally, Brown was aware of numerous burglaries and window smashings that had occurred continuously during the past three to four months in the immediate area and that the tire store had been the target of a window smashing.

His suspicion aroused, Brown drove up to the individuals and asked what they were doing and received a reply that they were looking for a hamburger stand. Brown had just driven by an open hamburger stand, The Ox, about six blocks away. The individuals, however, told him that they had left the hamburger stand because it was closed. Both individuals did not appear to be carrying tools for window smashing. With his suspicion further aroused by what appeared to be a lie, Brown asked the appellant and his friend for their names and addresses. Appellant verbally indicated his identity but produced no written identification. Brown checked with communications for a warrant check on both appellant and his friend although there was nothing in their behavior which would lead him to believe that a warrant was outstanding on either appellant or his friend. Brown testified that he ran the warrant check to see if appellant was giving him truthful information and to take him to jail if a warrant was outstanding. Appellant also wanted to find out appellant's true identity.

About five minutes after the warrant request was made, but not more than ten minutes from the point of his first questions to the two individuals, Brown received a radio communication indicating that there was a bench warrant outstanding on appellant for possession of phencyclidine. Brown released appellant's companion, arrested appellant and transported him to jail. Brown asked appellant if he could put up the $250 bail but did not inform him that he could secure the services of a bail bondsman if he did not have the cash. When appellant said he could not post bail, Brown conducted a pre-booking search and found the phencyclidine which is the subject matter of the motion to suppress.

Counsel stipulated during the 1538.5 motion that the bench warrant in question issued by the East Los Angeles Municipal Court was recalled in November of 1979 and that Officer Brown had no knowledge of the fact that the warrant had been recalled. The record is silent as to why the warrant was recalled and also lacks any explanation regarding the cause for the delay in entering the recall in the computer system.

APPELLANT'S CONTENTIONS ON APPEAL

Appellant's contentions on appeal are as follows:

1. Appellant's initial detention was unlawful and was of an impermissibly long duration. This requires suppression of subsequently discovered evidence.

2. The bench warrant, which served as a basis for appellant's arrest, had been previously recalled and consequently the evidence discovered pursuant to such arrest must be suppressed.

DISCUSSION

Appellant Was Lawfully Detained For a Reasonable Time

Appellant contends that he was unlawfully detained for an unreasonable length of time by Officer Brown who should have terminated detention once he ascertained that appellant had no devices for burglarizing or vandalizing in his possession.

As stated in People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658, it is well-settled that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the street for questioning. (See also Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.)

Our Supreme Court has recently summarized the rule justifying an investigative stop or detention. “(I)n 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 (People v. Superior Court (Kiefer) supra, 3 Cal.3d 807 at 827, 91 Cal.Rptr. 729, 478 P.2d 449), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880 ....)” (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957; fn. omitted.) (See also People v. McGaughran (1979) 25 Cal.3d 577, 588, 159 Cal.Rptr. 191, 601 P.2d 207, reiterating the rule set forth in In re Tony C., supra.)

When Officer Brown approached appellant and his companion, he was aware of the fact that the area in which this particular tire store was located was in a high burglary area and that this particular store had been the target of vandalism. The store was set back from the street with no overhead lighting nearby to illuminate the area and there appeared to be no reason for the appellant and his companion to be standing outside the store late at night when it was not on a route that would lead them to any discernible place or innocent activity. Officer Brown approached the appellant and his companion to ascertain what they were doing. The appellant and his companion stated information that the officer had reason to believe was untrue. His suspicions were aroused and he requested that the appellant and his companion identify themselves and where they lived. Appellant produced no written identification but verbally identified himself.

We cannot say that the officer's actions were unreasonable or improper under these circumstances. Given the facts and circumstances set forth above, the officer was justified in at least making an initial inquiry with regard to reasons for the appellant and his companion being at the location. Upon receiving a false response, he had reason to detain the appellant and his companion for a short period of time to verify their identification and to ascertain whether any warrants were outstanding. The facts of the instant case are distinguishable from the traffic stop that occurred in McGaughran, supra, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207. In McGaughran, the officer observed an automobile proceeding in the wrong direction on a one-way public street, effectuated a traffic stop and detained the driver for a period of some ten minutes to ascertain the existence of any outstanding arrest warrants. In McGaughran, the only possible violation which would justify the detention was a traffic violation. The court stated: “(T)he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop. If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.” (Id., at p. 584, 159 Cal.Rptr. 191, 601 P.2d 207; fn. omitted.) “All that was ‘reasonably necessary’ to deal with the offense, however, was for (the officer) to examine defendant's license and registration, explain the violation, and then issue either a citation or a warning. The additional period of detention for the purpose of seeking out unrelated arrest warrants in the name of defendant or his passenger was not ‘reasonably necessary’ to that process and it hence ‘exceeded constitutional limitations' under the foregoing rule.” (Id., at p. 587, 159 Cal.Rptr. 191, 601 P.2d 207; fn. omitted.)

Officer Brown made the warrant check in order to verify the identification of the appellant who was unable to document his identification. Consequently, Officer Brown was continuing in his investigation of appellant's identity in making the warrant check which extended the detention time some four to five minutes. Such brief extension is constitutionally permissible notwithstanding McGaughran because here it is a reasonable continuation of the initial investigation rather than unrelated thereto as in McGaughran. We conclude that the trial court's decision in upholding the detention was proper and should be upheld.

The Appellant's Arrest on the Bench Warrant Was Valid In Spite of the Fact that the Warrant Had Been Recalled

We next deal with the difficult question of whether the arrest on the warrant should be validated even though the warrant had in fact been recalled some eight months prior to the arrest. Appellant argues that but for the fact that his name was still mistakenly “on the police computer's wanted list, he would not have been arrested, booked, searched, or charged with any offense.”

We do not believe that the deterrent effect of the exclusionary rule would be served by the suppression of the evidence of this case. Here, Officer Brown could not have manufactured the existence of the warrant.1 There is also no evidence that would justify the belief that the warrant was purposely maintained on the computer system which if true would, in our opinion, justify declaring the arrest invalid for this reason alone.

Appellant cites by analogy, Michigan v. DeFillippo (1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, and Jennings v. Superior Court (1980) 104 Cal.App.3d 50, 163 Cal.Rptr. 691, which deal with the issue of an arrest made in good faith reliance upon an ordinance that is subsequently declared unconstitutional. Although the United States Supreme Court upheld the good faith rule in DeFillippo, the Fourth District Court of Appeal in Jennings held that the good faith rule was not the appropriate standard under the California Constitution (art. I, s 13). Jennings is distinguishable from the facts of the instant case because that decision did not deal specifically with good faith reliance on the existence of an arrest warrant.

In People v. Marquez (1965) 237 Cal.App.2d 627, 47 Cal.Rptr. 166, a warrantless arrest followed a traffic stop by officers in which the defendant was operating a car without stoplights and driving without a license. The court in Marquez stated: “(I)n determining whether or not an arresting officer acts reasonably in believing that the person arrested committed a felony the court looks only to the facts and circumstances presented to the officer when the arrest was made-not to something later discovered. (Citation.)” (Id., at p. 633, 47 Cal.Rptr. 166.) This good faith rule viewed as of the time of arrest was followed in People v. Honore (1969) 2 Cal.App.3d 295, 300-301, 82 Cal.Rptr. 639.2

Further, in People v. Knight (1970) 3 Cal.App.3d 500, 83 Cal.Rptr. 530, defendant Knight was detained on suspicion of auto burglary without probable cause to arrest. Defendant was later arrested on an outstanding felony warrant which the officers learned of during the detention period as the result of a routine radio check. The outstanding warrant was based on a complaint which was defective because the underlying facts were not set forth in the complaint and the complaint was not signed by an officer who had personal knowledge of the facts. While it is true that the defective warrant in Knight is distinguishable from the warrant in the instant case because it could have been cured by a properly drawn complaint, the thrust of the Knight decision is to validate an arrest if based on communications received through official channels. The court stated: “The People cite the line of cases which stand for the proposition that an officer may validly arrest on the basis of requests made through official communication channels such as the police radio. Pointed to is the fact that all the prosecution need show is that the officer who made the request had the required probable cause to do so. (See People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202 ....) It is argued that, since official communication channels are valid conduits of probable cause, where, as here, the officer initiating the request for an arrest warrant has probable cause for arrest, and there is thereafter a communication through official channels to arrest on the warrant, the fact the warrant may be invalid for one reason or another should not affect the legality of the arrest. (P) We conclude that that argument must prevail.” (Id., 3 Cal.App.3d at p. 503, 83 Cal.Rptr. 530.)

The factual situation in the instant case is analogous to that which existed in Hill v. California (1971) 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484, affirming People v. Hill (1968) 69 Cal.2d 550, 72 Cal.Rptr. 641, 446 P.2d 521, wherein the police admittedly had probable cause to arrest defendant Hill, proceeded to Hill's address and encountered an individual who professed to be one Miller. The officers nevertheless arrested Miller because of descriptions previously received from various sources and statements made by Miller that he was in actuality Hill. Pursuant to the arrest, the officers searched Hill's house and the fruits of that search were introduced at trial. In affirming, the Supreme Court stated: “The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situations facing them at the time.” (Hill, supra, 401 U.S. 797, 803-804, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484.)

Our Supreme Court in Theodor v. Superior Court (1972) 8 Cal.3d 77, 100, 104 Cal.Rptr. 226, 501 P.2d 234, discussed the wisdom of the Hill decision and stated “(u)nder those circumstances in which an officer makes an arrest without a warrant (see Pen.Code, s 836), he is in essence required to perform two tasks: first, he must ascertain what events have transpired, i. e., what are the facts; second, from those facts he must deduce whether a crime has been committed. It is to this task in a warrantless search or arrest that the probable cause standard usually refers.... ‘Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’ ... (P) There is no reason to hold an officer to a standard of absolute accuracy in those instances in which the inference-drawing power is reserved for the magistrate who is to issue a warrant, when the officer is only required to reach a reasonable factual deduction in those instances in which he makes the inferences and acts without a warrant. In both cases, the constitutional standard is one of reasonableness.”

The policy considerations on this question are clear. Should the court validate an officer's arrest on an outstanding warrant made in good faith even if the warrant is subsequently found to be recalled? Or, should the court look with the benefit of hindsight to invalidate the arrest because the warrant was no longer in existence and the defendant never should have been arrested? We choose to follow the former alternative following the decision in Marquez which would validate the arrest made in good faith at the time of the arrest though it is later discovered to have been factually incorrect. This view is consistent with the decision in Hill, supra, by our United States Supreme Court. Consistent therewith, we are of the opinion that the tests and standards should be good faith and reasonableness.

The judgment is affirmed.

FOOTNOTES

1.  Nor is this a question dealing with “ ‘the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly received by him from an informer to another officer who had not received such information from the informer, without establishing under oath that the information had in fact been given to any officer by the informer, or indeed that there was an informer at all. The possibilities of the phantom informer, if this were to be permitted, are too obvious to need elaboration.’ (People v. Harvey (1958) 156 Cal.App.2d 516, 523, 319 P.2d 689 ....)” (Ojeda v. Superior Court (1970) 12 Cal.App.3d 909, 920, 91 Cal.Rptr. 145.)

2.  The question of the validity of an arrest based on the good faith belief of the existence of a warrant was discussed in People v. Rice (1970) 10 Cal.App.3d 730, 738, footnote 3, 89 Cal.Rptr. 200, as follows: “However, the officers' belief in the existence of a warrant, while not sufficient in itself to justify the arrest, is of some significance. The fact that the officer had received information from an official source concerning an alleged warrant indicates that the officers' act of going to the residence was reasonable and not merely the result of some unfounded hunch of the officers that criminal activity might be underway there. A totally different situation would be present if the officers were not acting in response to a communication from another police department but were instead indiscriminately knocking on all doors in the neighborhood until they chanced upon someone engaged in criminal activity.”

LUI, Associate Justice.

COBEY, Acting P. J., and POTTER, J., concur.