THE PEOPLE v. DAMAL DEVON STOKES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Damal Devon Stokes appeals his conviction by plea to first degree residential burglary (Pen.Code, § 459) 1 following the denial of his motion to suppress a confession (§ 1538.5).  The trial court suspended imposition of sentence, granted probation, and ordered appellant to serve 180 days county jail with credit for time served.  We affirm.

Facts

On August 16, 2009 Ventura Police Department Officers Joel Kline and Karl Reyes responded to a residential burglary call at 6403 Ralston Street, Ventura.   The burglar entered through a bedroom window, took a shotgun and some two dollar bills, and left a tell-tale shoeprint on the tabletop next to the window.   Office Reyes photographed the shoeprint because it had a distinctive waffle/triangular type pattern..

The next day, Officer Kline responded to a residential burglary call at 6083 Falcon Street, Ventura, a few blocks from the Ralston Street burglary.   Omar De Jesus reported that his 40-inch flat screen television was missing and that a Wii console and laptop computer were taken a few days earlier.   De Jesus stated that appellant, who lived next door, may have committed the burglary.   There was no sign of forced entry and appellant's proximity as the next-door neighbor would have given appellant the opportunity to enter the residence without breaking in.   Before the burglary, appellant sold a barbeque to De Jesus that De Jesus believed was stolen.

Officer Kline went next door and spoke to appellant's father, Gilbert Stokes.   Mr. Stokes stated::  1. appellant was on probation for drug-related offenses, 2. unemployed, and 3. living in the garage rent-free.   Officer Kline confirmed that appellant was on probation with search terms.

Stokes wanted to know if appellant was involved in the burglary, telephoned appellant, and told him to return home immediately.   Stokes consented to a search of the premises and, without asking, opened the garage door.

Officer Kline saw a pair of Nike Air Jordan shoes that had a waffle/triangular tread “[v]ery similar” to the shoeprint at the Ralston Street burglary.   At some point in time, Officer Kline summoned Officer Reyes, compared the digital camera photo of the shoeprint with the shoes, and determined that the shoes and shoeprint were “extremely similar.” ²

Appellant returned home and was arrested.   Waiving his Miranda rights (Miranda v. Arizona (1969) 384 U.S. 436 [16 L.Ed.2d 694], appellant stated that he and Chad Martinez committed the burglaries and hid the property at Martinez's house.

Nike Air Jordan Shoes and the Fourth Amendment

Appellant argues that his confession should be suppressed because the officers lacked probable cause to arrest.   On review, we defer to the trial court's factual findings where supported by substantial evidence and independently determine whether, on the facts found, there was sufficient probable cause.   (People v. Kraft (2000) 23 Cal.4th 978, 1036.)  “Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.  [Citation.]”  (Id., at p. 1037.)   A mere hunch is not enough.  (People v. Martin (1973) 9 Cal.3d 687, 692.)

Although the trial court credited appellant's testimony that the arrest preceded the officers' visual comparison of the shoes and shoeprint photo, it found probable cause to arrest.   Officer Kline was an “experienced officer, he has seen a shoe print, he sees a shoe, he makes the connection it's the defendant's shoe, he has other sketchier facts that [defense counsel] points out[.]  I think there was probable cause of arrest, but certainly at that level not to convict because of the ubiquitousness of Air Jordans.”

Appellant claims that the arrest was unlawful because the trial court characterized the probable cause to arrest as “sketchy.”   Probable cause “is a fluid concept-turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules.”  (Illinois v. Gates (1983) 462 U.S. 213, 232 [76 L.Ed.2d 527, 544].)

Officer Kline saw the distinctive waffle/triangular tread on appellant's shoes which was very similar to shoeprint at the Ralston Street burglary.   The officer was trained in shoeprints and made the comparison based on his recollection of what he saw and photographed the day before.   To say that the shoes and shoeprint were “very similar” (before the photo comparison) as opposed to “extremely similar” (after the photo comparison) quibbles with the Fourth Amendment analysis.³

Appellant argues there is no consensus in the scientific community regarding the threshold of characteristics required to match a shoeprint with a particular shoe.   The Fourth Amendment, however, does not require that police officers be experts or forensic shoe scientists.   It is settled that the comparison of shoeprints is matter of nonexpert rather than of expert testimony.  (People v. Maglaya (2003) 112 Cal.App.4th 1604, 1608-1609 [officer permitted to give lay

At the time he decided to arrest appellant, Officer Kline knew that appellant lived next door, was unemployed, and connected the dots when he saw the Air Jordan shoes.   It was an “Aha!” moment that would cause a reasonable person to entertain a strong suspicion that appellant had committed a burglary.  “Unless it can be said that prudent men [or women] in the position of these officers knowing what they knew and seeing what they did would not have had reasonable cause to believe and to conscientiously entertain a strong suspicion that [appellant] was violating or had violated the law, the arrest should be held lawful.”  (People v. Ingle (1960) 53 Cal.2d 407, 414.)

Appellant argues that possession of Air Jordan shoes, which are sold world-wide, is “ubiquitous” and cannot establish probable cause to arrest.   The trial court did not, however, solely rely on this fact.   Possession of these shoes with the waffle/triangular shoeprint pattern was unusual, and incriminating, when considered in context of the police investigation.   Nike Air Jordan shoeprints on a tabletop are not an every-day event.   Burglary suspects wearing Nike Air Jordans are not exempt from warrantless arrests.   Nike Air Jordan shoes may be wonderful and “springy” in the athletic context.   Here, however, they were a springboard to a lawful arrest.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Ventura

Michael C McMahon, Chief Deputy Public Defender and Stephen P. Lipson, Deputy Public Defender, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. Officer Kline testified that “Damal [appellant] hadn't arrived yet.   Officer Reyes, myself, and Mr. Gilbert Stokes were waiting for Damal.  [¶] And while we were waiting, Officer Reyes and I compared the shoe that was found ․ in the garage with the photo on the two-inch by two-inch camera screen, and it appeared that both the shoe print on the camera as well as the shoe found in Damal's room were extremely similar.”.  FN2. Officer Kline testified that “Damal [appellant] hadn't arrived yet.   Officer Reyes, myself, and Mr. Gilbert Stokes were waiting for Damal.  [¶] And while we were waiting, Officer Reyes and I compared the shoe that was found ․ in the garage with the photo on the two-inch by two-inch camera screen, and it appeared that both the shoe print on the camera as well as the shoe found in Damal's room were extremely similar.”

FN3. On cross-examination Officer Kline was asked what he meant by “similar” and whether he had any idea how many Air Jordan shoes are sold nationally.   Officer Kline replied, “I guess I could go around with this all day.   They appeared to be the same shoe print, appeared.   They had the same characteristic, the design was the same.   I guess they just were similar.   It looked similar.”.  FN3. On cross-examination Officer Kline was asked what he meant by “similar” and whether he had any idea how many Air Jordan shoes are sold nationally.   Officer Kline replied, “I guess I could go around with this all day.   They appeared to be the same shoe print, appeared.   They had the same characteristic, the design was the same.   I guess they just were similar.   It looked similar.”

GILBERT, P.J. PERREN, J. Glen M. Reiser, Judge