Filed 3/22/22 Chavez v. Gordon CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mitchell Beckloff, Judge. Affirmed.

Rodney Gould for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Nancy G. James and Darren Shaffer, Deputy Attorneys General, for Defendant and Respondent.

____________________________

Greg Chavez appeals from a judgment denying his petition for an administrative writ of mandate. Chavez sought to set aside the suspension of his driving privileges by the Department of Motor Vehicles for driving while intoxicated and for refusing to submit to a chemical test of his blood or urine. Chavez contends the arresting officer did not have reasonable suspicion to stop him based solely on an anonymous tip of a “possible drunk driver.” The resulting arrest was thus unlawful and could not support the suspension. We disagree and affirm.

FACTS

On June 30, 2018, just before midnight, the Covina Police Department dispatch received a call regarding a “possible drunk driver who was in the drive[-]thru” of a McDonald’s restaurant in the City of Covina. Dispatch relayed the information to an officer in the area, which included the license plate number of the vehicle. When he arrived at the McDonald’s location shortly after the call, the officer matched the license plate number of an automobile then exiting the drive-thru lane with the one provided by the caller. The officer followed the vehicle for a few blocks and initiated a traffic stop.

The officer noticed Chavez, who was sitting in the driver’s seat, displayed indicators of intoxication: his eyes were red, bloodshot, and watery; he smelled of alcohol; and his speech was slurred and he mumbled. Chavez denied he had been drinking. The officer conducted a horizontal gaze nystagmus test.[1] Chavez displayed a lack of smooth pursuit in both eyes during the HGN test and “distinct and sustained nystagmus at maximum deviation in both eyes.” The officer attempted a series of standardized field sobriety tests, which Chavez refused. The officer believed Chavez was under the influence of alcohol and could not safely operate a motor vehicle. When the officer asked if Chavez wanted to submit to a blood or breath test, Chavez initially stated he wanted to give a blood sample. He later changed his mind and refused to submit to any testing. The officer admonished Chavez that his driving privilege would be suspended or revoked if he refused to complete a required chemical test. Chavez did not submit to a test. The officer then arrested Chavez and confiscated his driver’s license.

Chavez requested a hearing with the Department to challenge the suspension. The Department’s hearing officer considered the following sworn statement submitted by the arresting officer: “I responded to a radio call of a possible drunk driver at 121 N[.] Grand Ave[.] (McDonald’s) in the drive[-]thru. McDonald’s employees provided a license number for the S-veh[icle] . . . . I arrived on scene and the vehicle pulled out of the driveway.[2] I initiated a traffic stop on the vehicle per [Vehicle Code section 40300.5(d)]. The vehicle yielded and I contacted Greg Chavez who was seated in the driver seat. While talking with S-Chavez, I smelled a heavy odor of an alcoholic beverage emitting from his person. S-Chavez told me he wanted to refuse all Field Sobriety Tests (SFSTs). S-Chavez also refused the [preliminary alcohol screening] device. S-Chavez admitted he was driving back home. Due to his signs of intoxication while driving a motor vehicle, I formed the opinion that he was in violation of [Vehicle Code section 23123(a)] per [Vehicle Code section 40300.5(d)]. I arrested him for the violation.”[3]

In a separate Officer Report for the Incident, which is unsworn, the officer stated the “McDonalds [sic] employees advised Covina PD Dispatch the license plate number on the vehicle . . . .” Both documents were admitted into evidence at the administrative hearing over Chavez’s hearsay and lack of foundation objections. Neither the arresting officer nor the dispatcher testified at the hearing, and there was no other evidence of the call into dispatch.

Pertinent to this appeal, the hearing officer found there was reasonable cause for the officer to detain Chavez, and that Chavez was lawfully arrested without a warrant under the authority of section 23152 for driving while under the influence of alcohol. The Department affirmed a two-year suspension of Chavez’s license for failure to submit to a chemical test.

Chavez filed a petition for writ of mandate in the trial court, seeking to vacate the suspension and reinstate his driver’s license. After an independent review of the evidence, the trial court denied the petition, finding the arresting officer had reasonable suspicion to justify the initial stop and that the resulting warrantless arrest was lawful. Chavez timely appealed.

DISCUSSION

On appeal, Chavez challenges the trial court’s finding that his driver’s license suspension resulted from a lawful arrest, contending the initial investigative stop was illegal. Chavez asserts the anonymous tip was insufficient, by itself, to support a stop by the officer because it relayed only a “conclusory allegation of drunk or reckless driving.” (Navarette v. California (2014) 572 U.S. 393, 398 (Navarette).)

The Department contends the “anonymous tip” was not anonymous at all; it came from McDonald’s employees who provided Chavez’s license plate and location. The arresting officer could reasonably infer that it was one or more employees who had observed Chavez in the drive-thru lane, drew the conclusion from personal observation that Chavez was intoxicated, and reported Chavez’s condition to police with no ulterior motive other than good citizenship.

Chavez does not dispute a tip from someone like a McDonald’s employee who had the opportunity to observe a driver is generally more reliable than a true anonymous tip that only vaguely suggests possible drunk driving. He instead discounts the identity of the caller on the ground it was inadmissible hearsay that the tip came from McDonald’s employees. He also contends there is no evidence the employees interacted with Chavez. We are not persuaded.

1. The Administrative Per Se Procedures

The means by which the Department itself suspends an individual’s driver’s license for driving under the influence or for refusing to submit to a chemical test under the implied consent law is called the administrative per se procedure. (§§ 13353, 13353.2.) “The procedure is called ‘administrative per se’ because it does not impose criminal penalties, but simply suspends a person’s driver’s license as an administrative matter . . . . The express legislative purposes of the administrative suspension procedure are: (1) to provide safety to persons using the highways by quickly suspending the driving privilege of persons who drive with excessive blood-alcohol levels; (2) to guard against erroneous deprivation by providing a prompt administrative review of the suspension; and (3) to place no restriction on the ability of a prosecutor to pursue related criminal actions. [Citations.]” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.)

Under the “implied consent” statute, California drivers are deemed to have consented to chemical testing to determine their blood-alcohol concentration in the event they are arrested on suspicion of driving under the influence. (§ 23612, subd. (a)(1)(A).) A driver who refuses to submit to chemical testing will have his or her license immediately confiscated by the arresting officer, who then serves the driver with an order of suspension providing: (1) notice of the administrative suspension, (2) a 30-day temporary permit to drive, and (3) notice of the right to request an administrative hearing within 10 days. (§§ 13388, 13558, 23612, subd. (e)–(f).)

The arresting officer also must complete and sign under oath a statement which sets forth the facts necessary for the Department to suspend the driver’s license. That statement is forwarded to the Department. (§§ 13380, 13388.)

The driver has 10 days to contact a local branch of the Department’s Office of Driver Safety to request an administrative per se hearing. (§ 13558, subd. (a).) At the hearing, the Department determines whether a preponderance of the evidence demonstrates: “(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle [while under the influence of an intoxicant]. [¶] (B) The person was [lawfully] placed under arrest . . . . [¶] (C) The person refused or failed to complete the chemical test or tests after being requested by a peace officer.” (§§ 13557, subd. (b)(1), 13558, subd. (c)(2).) “The department shall consider the sworn report submitted by the peace officer . . . and any other evidence accompanying the report.” (§ 13557, subd. (a).)

Chavez’s sole challenge on appeal is to the finding that he was lawfully placed under arrest. He contends the stop leading to the arrest was not supported by articulable facts suggesting a crime was committed and the ensuing arrest was thus unlawful.

2. The Standard of Review

“A driver whose license has been suspended under the administrative per se law can seek review of the [Department’s] decision by seeking a writ of mandate in the trial court. ‘In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, “ ‘whether the weight of the evidence supported the administrative decision.’ ” ’ [Citation.] Following the trial court’s denial of the writ, the scope of our review on appeal is limited: ‘[W]e “need only review the record to determine whether the trial court’s findings are supported by substantial evidence.” [Citation.] “ ‘We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.’ ” ’ [Citation.]” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1217 quoting Lake v. Reed (1997) 16 Cal.4th 448, 456–457.)

3. The Arresting Officer Had Reasonable Cause to Suspect Chavez was Driving While Intoxicated

We now consider whether a tip from the McDonald’s employees under the circumstances of this case may by itself support a reasonable suspicion of criminal activity so as to allow a brief investigatory stop. Both United States Supreme Court and California Supreme Court precedent indicate it does.

1. An Anonymous Tip May Provide Reasonable Suspicion of Criminal Activity

An officer may conduct a brief traffic stop based upon reasonable suspicion the driver is intoxicated. (Navarette, supra, 572 U.S. at p. 403.) “Reasonable suspicion that criminal conduct has occurred does not require that an officer observe all elements of criminal conduct; rather, it requires that officer to be able to ‘point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ ” (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509.) “[T]he level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause.” (Navarette, supra, 572 U.S. at p. 397.)[4]

In Navarette, supra, 572 U.S. at page 403, an anonymous motorist reported she was run off the road by a truck and provided a description of the truck and a license plate number. Two CHP officers identified the truck and pulled it over approximately 15 minutes later. When the officers approached the truck, they smelled marijuana and ultimately confiscated 30 pounds of it. (Id. at p. 395.)

Petitioners moved to suppress the evidence, arguing the officers lacked reasonable suspicion of criminal activity based solely on the anonymous tip. The high court found the tip bore adequate indicia of reliability for the officer to stop the vehicle on suspicion of drunk driving: the caller had personal knowledge of the dangerous conduct, the caller’s report was contemporaneous with the conduct, and the caller used the 911 emergency system, which “has some features that allow for identifying and tracing callers, and thus provide[s] some safeguards against making false reports with immunity.” (Navarette, supra, 572 U.S. at pp. 398–401.) The court also found the “911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving.” (Id. at p. 403.)

In People v. Brown (2015) 61 Cal.4th 968, 981 (Brown), the California Supreme Court concluded a brief detention was supported by “a reliable citizen’s report of a violent fight potentially involving a firearm, the deputy’s very quick response time, and [the defendant’s] presence near the scene of the fight in the otherwise vacant alley.” Brown applied the Navarette factors to conclude the anonymous tip was sufficient to support a finding of reasonable suspicion because the tipster called while he was observing a fight in the alley outside his home, the dispatcher heard people screaming in the background during the call (lending support to the tip), and the caller used the 911 emergency system. (Id. at pp. 980–981.) Brown noted, “private citizens who report criminal activity generally have no bias or motive other than good citizenship, and therefore tend to be reliable.” (Ibid.; see Illinois v. Gates (1983) 462 U.S. 213, 233–234.) Although the 911 caller’s failure to provide a description of the suspects made it a “close question,” the totality of the circumstances justified the “very brief detention.” (Brown, supra, at p. 983.)

2. The Tip from the McDonald’s Employees Contained Sufficient Indicia of Reliability

On appeal, Chavez consistently refers to the call into dispatch as an “anonymous tip.” The record shows that the tip was not anonymous in the sense of “untraceable.” The caller reported he or she worked at the McDonald’s restaurant located on Grand Avenue in Covina.[5] The call to police was made close to midnight on June 30, 2018. The identity of the caller could be ascertained from these facts. As noted by the trial court, “No doubt, a late-night employee of a particular McDonald’s presents a limited number of persons.” This type of identifiable informant has come to be known not as an “anonymous informant” but a “citizen informant.” “Unlike information provided by an anonymous tip, information from a true citizen informant is considered reliable because a citizen informant ‘can be held responsible if [his or her] allegations turn out to be fabricated.’ ” (People v. Stanley (2017) 18 Cal.App.5th 398, 405, quoting Florida v. J.L. (2000) 529 U.S. 266, 270.)

Even if we accept Chavez’s characterization of the tip as anonymous, Navarette and Brown tell us it was nevertheless objectively reasonable for the arresting officer to rely on it because the tip contained sufficient indicia of reliability.

First, the caller indicated he or she had personal knowledge of the drunk driving by placing the driver in the drive-thru lane of the McDonald’s restaurant where the caller worked. From these facts, the arresting officer could have reasonably inferred employees personally observed Chavez in the drive-thru lane during their shift and concluded Chavez had been driving while intoxicated.[6] “Lay witnesses have been permitted to give an opinion of another’s state of intoxication when based on the witness’s personal observations of such commonly recognizable signs as an odor of alcohol, slurring of speech, unsteadiness, and the like.” (People v. Williams (1992) 3 Cal.App.4th 1326, 1332; see also People v. Chapple (2006) 138 Cal.App.4th 540, 547.)

Second, the report was contemporaneous with the conduct – the call was made while the driver was still in the drive-thru lane. (Indeed, the police officer responded so quickly that the driver was just leaving the drive-thru lane when the officer arrived.) Much like Brown, the arresting officer here arrived soon after the call and the details provided by the caller were corroborated; the arresting officer observed a car with a license plate number that matched the one provided by the caller exiting the drive-thru lane where the caller had placed him.

Third, the caller’s report to the Covina Police Department dispatch that he or she worked at the McDonald’s allowed for identifying or tracing the call and “provide[d] some safeguards against making false reports with immunity.” (Navarette, supra, 572 U.S. at pp. 398–401.) That the caller worked where the drunk driver was observed rendered the tip more reliable because it “demonstrate[d] the informant’s basis of knowledge or veracity.” (Id. at p. 397.)

Nothing in the record suggests the caller had any motive other than good citizenship to make the report. Under Navarette and Brown, this constitutes substantial evidence supporting the trial court’s finding that the arresting officer reasonably relied on the employees’ tip that Chavez was driving while intoxicated.

Chavez relies on Navarette to assert the tip was unreliable because it contained nothing “more than a conclusory allegation of drunk or reckless driving.” (Navarette, supra, 572 U.S. at p. 403.) Not so. We have described the totality of the circumstances surrounding the tip that rendered it reliable under the factors identified in Navarette.

Navarette disposes of Chavez’s argument that his “flawless” driving over three city blocks and two turns dispelled any reasonable suspicion held by the arresting officer that Chavez was driving while intoxicated. “It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time.” (Navarette, supra, 572 U.S. at p. 403.)

We also reject Chavez’s rather scurrilous assertion that the trial court “invented” facts to bolster the tip. According to Chavez, the trial court assumed the caller was a McDonald’s employee based on hearsay evidence and, from that, made the further assumption that the caller must have had contact with Chavez in the drive-thru lane. We find Chavez’s characterization of the record unsupported.[7]

As an initial matter, the arresting officer was entitled to rely on the information provided to him by the dispatcher. (Brown, supra, 61 Cal.4th at p. 983.) If a 911 call “ ‘has sufficient indicia of reliability . . . a dispatcher may alert other officers by radio, who may then rely on the report, [citation], even though they cannot vouch for it.’ ” (Ibid.) Here, Chavez does not contend the tip was falsified or somehow the product of the dispatcher’s imagination.

Relying on In re Eskiel S. (1993) 15 Cal.App.4th 1638, Chavez instead contends the Department was required to provide the dispatch recording to shed light on the source of the tip to meet the Department’s burden of proving the stop was lawful. In re Eskiel S. does not stand for that proposition and is distinguishable on its facts. In In re Eskiel S., a patrol officer relied on a radio broadcast of a possible gang fight in a general area to detain the defendant. (Id. at p. 1641.) The court held the detention was not justified because the record lacked any evidence of the source of the information contained in the broadcast. It reasoned, “A radio broadcast which cannot be traced back to its source amounts to nothing more than an anonymous tip.” (Id. at p. 1644.)

Unlike the radio broadcast in In re Eskiel S., the record shows the source of the information relayed to the arresting officer by dispatch was the tip from the McDonald’s employees. In any event, we need not rely on In re Eskiel S., a criminal case, in this administrative proceeding because Navarette and Brown guide our treatment of such tips.

We reject Chavez’s contention that the arresting officer’s report that “McDonald’s employees” provided the license plate number to dispatch was inadmissible hearsay.[8] That report was not admitted to show the truth of the statements asserted, that is, that the caller was a McDonald’s employee or that Chavez was driving under the influence. Instead, the report was admitted to show the arresting officer had reasonable cause to detain Chavez. (Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133–134; see also Cal. Criminal Law: Procedure and Practice, (Cont.Ed.Bar 2017) § 16.20, p. 421 [“Testimony offered solely on the issue of probable cause, which would be hearsay if offered for the truth of the matter asserted, is not hearsay. For example, if a police officer testifies to the reported description of an alleged robber, the testimony is not admitted to prove that the robber was as described; it is offered to show that the officer has probable cause to detain, search, or arrest the defendant”].) The reference to McDonald’s employees was what brought the arresting officer to the location at which time he saw the car with the described license plate leaving the scene.

We also find no “invented evidence” in the trial court’s inference that McDonald’s employees interacted with Chavez in the drive-thru lane. Chavez acknowledges inferences may be made so long as they are the product of logic and reason and rest on the evidence. (People v. Wells (2006) 38 Cal.4th 1078, 1088 [a reasonable inference was made that the tipster was a passing motorist].)

Here, the evidence shows the arresting officer observed Chavez exiting the drive-thru lane of the McDonald’s restaurant. It is both logical and reasonable to infer that Chavez interacted with McDonald’s employees while in the drive-thru lane. It is also logical and reasonable to infer that those employees would have observed Chavez’s bloodshot eyes and slurred speech, as the arresting officer did when he conducted the traffic stop, and made the report to the Covina Police Department dispatch about a possible drunk driver.

Nor do we credit Chavez’s assertion the arresting officer was obligated to confirm the tip that Chavez was driving while intoxicated before initiating a stop. Navarette explained “an officer who already has such a reasonable suspicion [of intoxication] need not surveil a vehicle at length in order to personally observe suspicious driving” “because allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences.” (Navarette, supra, 572 U.S. at p. 404.) Here, an officer would have no opportunity to confirm the smell of alcohol, the red eyes, and the slurred speech that the McDonald’s employees reasonably may have witnessed before a brief investigative stop.

DISPOSITION

The judgment is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

[1] “ ‘Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotary. [Citation.] An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. [Citation.] Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction. [Citation.]’ ” (People v. Leahy (1994) 8 Cal.4th 587, 592.)

[2] By context, “S” appears to be shorthand for “suspect.”

[3] Vehicle Code section 40300.5, subd. (d) provides “a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage . . . when any of the following exist: [¶] . . . [¶] (d) The person may cause injury to himself or herself or damage property unless immediately arrested.”

All further undesignated statutory references are to the Vehicle Code.

The officer’s statement he arrested Chavez for a violation of section 23123, subdivision (a) appears to be a typographical error. That section is the offense of driving while using a wireless telephone. Section 23152, subdivision (a) is the offense for driving under the influence of alcohol. Chavez was arrested for the latter.

[4] The Navarette court compared the detention to investigate dangerous driving to a Terry stop. (Navarette, supra, at p. 397, citing to Terry v. Ohio (1968) 392 U.S. 1, 21–22.)

[5] The arresting officer’s reports indicate McDonald’s “employees” reported the possible drunk driving. While it is reasonable to infer that the information concerning the possible drunk driving may have come from more than one employee, we assume only one employee called dispatch.

[6] Our analysis remains the same even if the information relayed to dispatch was derived from more than one McDonald’s employee. That is, the caller may not have personally observed the behavior but was calling on behalf of the employee or employees who did.

[7] Chavez mentions hearsay – “triple-hearsay” to be exact – twice in his opening brief, and hearsay again three times in his reply brief. In neither brief does he develop an argument based on legal authority. The Attorney General does not assert forfeiture and addresses the issue on the merits. For this reason, we exercise our discretion to consider the argument. (In re Sheena K. (2007) 40 Cal.4th 875, 887 fn. 7 [“an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion’ ”].)

[8] We decline to credit Chavez’s argument that the arresting officer’s report did not state the employees reported the drunk driving, only that they provided the license plate number. It is undisputed there was no other tip leading to Chavez’s detention and arrest. The trial court reasonably found that the employees did not report only a license plate number without context for that information. We, too, read the officer’s report to indicate the McDonald’s employees reported the drunk driving, the location, and the license plate number.