PEOPLE v. HOUSTON (1984)

Following his unsuccessful Penal Code section 1538.5 motion to suppress evidence essential to his conviction, defendant Houston was found guilty by a jury's verdicts of selling cocaine (Health & Saf.Code, § 11352), and conspiracy to sell cocaine (Pen.Code, § 182).   He appeals from an order imposing conditional probation upon him.

We affirm the order imposing probation.   Our reasons follow.

I. Houston states the first issue of his appeal in this manner:  “Should appellant's confession have been suppressed by the trial court because it was the product of an unlawful arrest?”

 One Bottger, an undercover law enforcement officer, had negotiated by telephone with one Fitz-Stephens to purchase two pounds of cocaine for $64,000.   As a preliminary to the illicit deal, Bottger was asked to make a “show” of the required money at a “Gemco” parking lot.   Soon after, another officer observed Fitz-Stephens leave his home and drive to the Gemco parking lot.   There Bottger showed Fitz-Stephens the “$64,000, United States Currency,” and the two agreed to meet at the “Sizzler” a few hours later.   An officer then followed Fitz-Stephens who first met with one Derek Kew, after which the two men went to a house, the address of which was “listed in the phone book under Charles Houston.”  Fitz-Stephens and Kew remained in Houston's house for 10 or 15 minutes.   Thereafter Bottger engaged in several hours of negotiations with Fitz-Stephens and Kew over the proposed purchase.   Difficulties arose over the manner of its consummation, which difficulties appear to have been finally resolved.   During the negotiations there had been much talk by Kew and Fitz-Stephens about the “man” and their “supplier,” who “had to go through another man and that was the problem.”   The men then parted.

Within minutes officers observed Fitz-Stephens and Kew drive to, and enter, Houston's house.   A few moments later, Houston left his house and drove off;  he returned in about 20 minutes.   Bottger was then telephoned by Fitz-Stephens who arranged a meeting forthwith at the Gemco parking lot, where the two men met.   At Fitz-Stephens' display of the agreed-upon cocaine nearby officers closed in and arrested him.   Houston's arrest thereafter is the subject of the instant contention.

In our analysis of the contention we first observe that the utterances of Fitz-Stephens and Kew about the “man” and their “supplier” will, for our purposes be deemed reliable and true;  the officers reasonably believed them.

Such “utterances by a suspected accomplice can be presumed to be reliable in these circumstances since they ‘were not made for the selfish purpose of currying favor with law enforcement to mitigate the punishment of [the individual's] own criminal acts, or with the ulterior motive of causing the arrest of the petitioner upon a false accusation.’ ”  (People v. Fleming, 29 Cal.3d 698, 708, 175 Cal.Rptr. 604, 631 P.2d 38;  In re Jean M., 16 Cal.App.3d 96, 103–104, 93 Cal.Rptr. 679;  Ming v. Superior Court, 13 Cal.App.3d 206, 214, 91 Cal.Rptr. 477;  Barajas v. Superior Court, 10 Cal.App.3d 185, 190, 88 Cal.Rptr. 730.)

And, probable cause for an arrest exists “when the facts known to the arresting officer ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ ”  (People v. Harris, 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632;  People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961.)

Under these criteria there was patently probable cause for Houston's arrest.

Houston poses an alternative reason for the claimed invalidity of his arrest.   He argues that police officers, by strategem, induced him to come outside his home where he was arrested.

 We are referred to no record indicating that the point was raised in the superior court and we, ourselves, have found none.   If the point is raised on appeal for the first time we need not consider it.  (Pen.Code, § 1259;  People v. Almengor, 268 Cal.App.2d 614, 617, 74 Cal.Rptr. 213.)   And if, perchance, the matter was raised below and no record reference thereto is made, we need not consider it.  (See rule 15(a), Cal.Rules of Court;  People v. Beaugez, 232 Cal.App.2d 650, 653, 43 Cal.Rptr. 28;  People v. Meyer, 216 Cal.App.2d 618, 635, 31 Cal.Rptr. 285;  Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 199, 214 P.2d 603;  People v. Corlett, 67 Cal.App.2d 33, 54, 153 P.2d 595.)

Moreover, it was long ago said by the state's high court:  “[W]e know of no decision by any court of appellate jurisdiction in this state which holds or even suggests that when a defendant is illegally arrested for a public offense the illegality of the arrest permeates subsequent proceedings by which he is formally charged with the offense and tried on the formal charge.”  (People v. Valenti, 49 Cal.2d 199, 203, 316 P.2d 633;  and see:  People v. Schweitzer, 138 Cal.App.3d 204, 207, 187 Cal.Rptr. 696;  People v. Lortz, 137 Cal.App.3d 363, 367, 187 Cal.Rptr. 89.)

 And it appears to be the universal rule that police officers, except to make an unlawful entry upon the privacy of another, may, consistently with Fourth Amendment principles use stratagem or subterfuge in the suppression of crime and the apprehension of offenders.   There is nothing inherently unlawful in the use of police deceit for the purpose of suppressing crime and apprehending criminals.   A rule, which so far as we know has never been questioned, was stated in 1932 by Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, 441–442, 53 S.Ct. 210, 212–213, 77 L.Ed. 413 as follows:  “Artifice and strategem may be employed to catch those engaged in criminal enterprises․  The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design;  to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law․”

 Nor do we here find a Ramey (People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333) violation, as contended.  Ramey proscribes a warrantless entry of a home, except under unusual circumstances, to make an arrest.  (See:  People v. Ramey, supra, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, passim;  People v. Robertson, 33 Cal.3d 21, 37–38, 188 Cal.Rptr. 77, 655 P.2d 279;  Toubus v. Superior Court, 114 Cal.App.3d 378, 382–383, 170 Cal.Rptr. 697;  In re Gregory S., 112 Cal.App.3d 764, 774–775, 169 Cal.Rptr. 540;  People v. Ford, 97 Cal.App.3d 744, 747–748, 158 Cal.Rptr. 859.)   And we note that in People v. Tillery, 99 Cal.App.3d 975, 160 Cal.Rptr. 650, where a similar police “ruse ” was effected to have the defendant “step outside,” it was said (pp. 979–980, 160 Cal.Rptr. 650):  “The privacy interests protected by Ramey were satisfied when appellant voluntarily stepped outside.   Once he stepped outside, it was lawful for the officer to arrest him on probable cause.”

II. The remaining contention of Houston's appeal follows:  “Should appellant's confession have been suppressed by the trial court because appellant was denied his right to counsel and/or the waiver of his Miranda rights was invalid?”

Here it is principally contended that Houston's confession was the “fruit” of his unlawful arrest, i.e., the arrest which we have found lawful.

 And we note that Houston, upon his arrest, was twice advised of his Miranda rights, and that he waived them.   The superior court so found.  “[T]he trial court's ruling on a Miranda issue may not be set aside by us unless it is ‘palpably erroneous.’ ”  (In re Eric J., 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.)   The superior court's ruling was patently not “palpably erroneous.”

The order imposing probation is affirmed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.