P. v. Phillips

Filed 4/3/07 P. v. Phillips CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

At a preliminary hearing where a judge acting as magistrate denied his motion to suppress evidence (Pen. Code,  1538.5), defendant Tony Phillips was held to answer to one count of possessing cocaine base for sale (Health & Saf. Code,  11351.5). After that ruling was reviewed and upheld on his unsuccessful motion to set aside the information (Pen. Code,  995), Phillips entered a plea of guilty to the count in return for an indicated suspended imposition of sentence, three years felony probation, and a jail condition limited to time already served. Sentenced accordingly, Phillips appeals, challenging the denial of suppression. (Pen. Code,  1538.5, subd. (m).) We affirm the judgment.

Background

Officers, acting on a tip that Phillips was on the corner of 16th and Mission Streets in San Francisco with rocks of cocaine in his pocket, stopped and searched him there and found that this was so11 rocks totaling 4.54 grams. The issues on appeal are whether police had cause to stop, arrest and search him. We detail the preliminary hearing testimony on which suppression was adjudicated.

The sole witness was San Francisco Police Officer Peter Richardson. His experience included over 14 years as a police officer and numerous courses of study in drug trafficking that emphasized base rock and its street level sales. He had made more than 50 undercover purchases of rock cocaine and thousands of arrests for base rock cocaine for sale. One of those arrests had been of Phillips. He explained: I know that Mr. Phillips is on probation. I chased him. I arrested him for narcotics. (There is no testimony that the officer knew whether Phillips had a search condition of probation.)

The current arrest took place at 7:55 p.m. on August 23, 2005, at a BART plaza on the southwest corner of 16th and Mission. Richardson was working plainclothes narcotics enforcement and, 10 minutes earlier, had gotten a cell phone call from a confidential informant (CI) describing Phillips and his clothing, and saying that Phillips was standing on that southwest corner with rock cocaine in his right front pants pocket. Richardson knew the areaspecifically, that southwest BART plaza. It is an area that is plagued with drug dealers that loiter there selling narcotics.

Richardson arrived at the designated corner and saw Phillips, who matched the clothing and physical descriptions and was sitting on a bench. Richardson used his cell phone to contact the CI, who stood about 75 feet away, and confirmed with the CI that this was the suspect he was talking about. Richardson then instructed the CI not to watch him approach Phillips, and the officer watched as the CI walked away.

Richardson walked up to Phillips, identified himself as a police officer and detained him while a second officer, Officer Sanchez, searched Phillips and recovered 11 rocks of cocaine, 10 individually wrapped, from the same pocket the CI had indicated. Phillips was arrested and taken to the Mission Station, where a third officer recovered from him small denominations of bills consistent with street-level narcotics sales. In Richardsons experience, a purchaser, as opposed to seller, of drugs would not remain in that area: Even if they are waiting for a bus, they will commonly walk out of the area to get away from the area that is frequently patrolled by police.

Chiefly contested was the reliability of the tip. Richardson testified that he had known the CI (invoking privilege as to his name) for 10 years and had first given him his phone number about that long ago. He knew the CI had been convicted of a felony and was currently on probation, but not parole, and had not been arrested within the past six months. The CI, he said, contacts me by calling me, did so about three days a week and had last called him the day before this call about Phillips. Richardson had no arrangement with the CI leading to this call, and Richardson had never given him any benefit in the form of speaking to a prosecutor on his behalf to mitigate any criminal charge or sentence.

Richardson did, however, give the CI money. Asked to elaborate and whether the CI was paid for non-drug tips, Richardson explained: If the informant gives me information on a nondrug-related incident and the person is arrested, yes. But if its a drug-related incident, the informant only gets paid after that person is arrested and drugs are seized. The CI did not work just for Richardson: Its an informant that I will be in charge of paying, but that informant is free to work with other officers . . . whenever. If [others] work with the informant, they will then contact me. I then meet with that officer, obtain a copy of the police report, oftentimes, and then I will pay the informant based on that case.

The last time before Phillips that the CI had given Richardson information that resulted in an arrest, with narcotics found, was sometime within two weeks, and it had produced rock cocaine. [O]ftentimes, he explained, the informant gives me information that I do notwell, I dont have enough to arrest at that point, but I will at least identify subjects.^[1]

On cross-examination, Richardson could not give a case name or an incident number involving an arrest. He did have copies of receipts for payment to the CI. The case numbers would be on those receipts, plus lab numbers for the cases, but he did not have files with him that contained that information and could not recite the information offhand. Asked if he had a record of all cases in which the informant provided [him] information in which someone was arrested, he said no, that he would have to compare records in his files with receipts that narcotics keeps in their files, and that way come up with defendants names. Asked for the specifics, that is, dates, times, names of people, contraband seized, whether the case was filed, whether the case was prosecuted, whether the case was convicted [sic], he said I dont have that off the top of my head. He said he had no arrest or search warrant in this case and that, when he approached Phillips, he was merely sitting there.

Argument in both courts focused on the CIs reliability. In denying suppression, the magistrate, Judge Teri L. Jackson, stated for the record that she found the facts fairly slim but then noted the officers 10-year relationship with the CI, this and other officers reliance on and payment of the CI, payment of him for the arrest just two weeks prior, and the accuracy of the description he gave. The reviewing judge, Judge Philip J. Moscone, noted his limited role to uphold any factual findings supported by substantial evidence and that the magistrate had found the CI to be reliable. Judge Moscone stressed the officers 10-year history with this CI, the arrest two weeks earlier, and an indication of further arrests that the officer couldnt remember. He also cited the officers personal experience, stressing corroboration from the location, at 16th and Mission, especially the southwest corner.

Discussion

Our review function is well established. We defer to the trial courts factual 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. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the [trial] court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officers knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial courts express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry. [Citations.] (People v. Price (1991) 1 Cal.4th 324, 409.) Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.] (Id. at p. 410.)

Justification for an investigative detention requires only reasonable suspicion, a standard less rigorous than probable cause but based, just the same, on the totality of the circumstances. (Alabama v. While (1990) 496 U.S. 325, 329-330.) In each situation, a court takes into account the facts known to the officers from personal observation, . . . giving [even an] anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. (Id. at p. 330.)

Initially, the record does not show that anything learned by detaining Phillips contributed to whatever cause already existed to arrest him outright. We do not know whether he did anything suspicious upon being approached, and the search of him was never described or justified as a protective search for weapons, as opposed to a search incident to arrest. Analysis of mere reasonable suspicion (People v. Wells (2006) 38 Cal.4th 1078, 1083) therefore serves no purpose here. Next, while it was shown that Officer Richardson knew that the CI was on probation, the officer conceded that he did not know at the time whether there was a warrantless search condition, thus rendering that avenue of justification unproductive (People v. Robles (2000) 23 Cal.4th 789, 796-798). Similarly, while a police report appended to the motion to suppress indicates that the officers eventually learned that Phillips was also on parole, their lack of prior knowledge also moots that avenue of inquiry (People v. Sanders (2003) 31 Cal.4th 318, 332-335). We therefore proceed as the court below and both parties have, by looking straightaway at probable cause to arrest.

We hold that the record supports probable cause. This CI was a felon who was paid for his tips, thus requiring a greater showing of reliability than a presumptively reliable citizen informant. (People v. Ramey (1976) 16 Cal.3d 263, 268-269.) On the other hand, he was not untested or anonymous. Officer Richardson had a 10-year history of working with him, currently heard from him about three days a week, and within the past two had gotten a tip from him that produced an arrest for rock cocaine. It may have been an oversight on the prosecutors part but, as Phillips notes, the officer was never asked to estimate how many times, or what percentage of the time, tips from this CI had proven to be accurate. We cannot agree with Phillipss view, however, that, in that entire time Officer Richardson could only recall one time . . . that information from the informant led to the discovery of contraband. Actually, the officer was never asked how many times tips had led to drugs. What he was asked, and could not recite offhand and without files to review, were names, a case name, or an incident number for past cases. This, of course, did not mean that there were no such cases; rather, it implied that there were and that he could give the requested details, just not offhand. This officer had made thousands of arrests for base rock cocaine for sale and worked with this informant for 10 years, presumably making the officer loathe to hazard guesses about names and case numbers in particular cases. Our review compels us to resolve competing inferences in favor of the ruling, just as we would for competing direct evidence (People v. Lee (1987) 194 Cal.App.3d 975, 981), and the strong inference here was that there were other arrests and drug seizures based on this CIs information, an inference overwhelmingly supported by the officers testimony about how he would pay the CI whenever the CI provided information in other officers cases. The magistrates mention that Richardson had been dealing with the particular informant for 10 years allows us to infer further that the magistrate reasoned that this experienced officer would not have dealt with the CI so long if he had not given reliable tips, another factor supporting reliability.

The officer also explained that there was no prior arrangement for this case and that the CI was paid only for information leading to narcotics seizures and arrests. The magistrate could reasonably infer that the CI had no incentive to give bad information. We know that a call from the CI probably just the day before Phillipss arrest may not have resulted in an arrest or any police action, but this does not cast doubt on the CIs reliability, as Phillips supposes. Richardson explained that tips [o]ftentimes lacked enough information for immediate action, were one piece of an ongoing investigation (fn. 1, ante), or even revealed a drug location (like females having their narcotics concealed in their vagina) on which police declined to act.

Next, the CI not only gave accurate physical and clothing descriptions, details that support an inference of personal knowledge (People v. Costello (1988) 204 Cal.App.3d 431, 447), but he was standing just 75 feet from Phillips, to confirm the suspect, when the officer arrived. The magistrate could reasonably deem this personal presence as lending further credence to the CI, and as strongly reinforcing that his  basis of knowledge,  a traditional element of reliability (Illinois v. Gates (1983) 462 U.S. 213, 230, 238), was first-hand observation rather than hearsay.

Finally, almost lost in Phillipss disparaging of the CI are important facts that this officer had arrested Phillips before, for narcotics, and now saw him merely sitting on a corner plagued with drug dealers that loiter there selling narcotics. Sitting on a corner may be innocuous in itself. However, [e]ven observations of seemingly innocent activity suffice alone, as corroboration, if [an] anonymous tip casts the activity in a suspicious light (People v. Costello, supra, 204 Cal.App.3d at p. 446), and here the tip was not anonymous. The officer also knew from experience that people who bought drugs on that corner never lingered like that, due to frequent police patrols.

Phillips places great reliance on Florida v. J. L. (2000) 529 U.S. 266, but it is easily distinguished. Our state high court recently summarized it as involving an anonymous phoned-in tip claiming a young African-American man in a plaid shirt standing at a particular bus stop was carrying a gun. The high court held the tip insufficient to justify a brief detention and patdown search, absent some independent corroboration of the reliability of the tip and tipsters assertion of illegal conduct. [Citation.] As the court stated, [a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L. [Citation.] The high court stressed that the tip contained no predictive information (such as predicting the suspects future behavior) that might demonstrate the tipster had inside information of concealed criminal activity. [Citation.] (People v. Wells, supra, 38 Cal.4th at p. 1084.)

Here, by contrast, we have a suspect whom the officer himself had arrested for drug activity and who now sat idly in an area plagued with drug dealers that loiter there selling narcotics. The federal high court also reasoned: Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], an anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity, [citation]. (Florida v. J. L., supra, 529 U.S. at p. 270.) Here, we have a known informant with a long history of working with this and other officers, plus other indicators of reliability, including actual presence at the scene.

The People correctly note strong favorable precedent in Draper v. United States (1959) 358 U.S. 307 (discussed at length with approval in Illinois v. Gates, supra, 462 U.S. at pp. 242-245), where probable cause was supplied by a paid informants letter tip of interstate drug trafficking and police had corroborated much behavior the informant had predicted. Here, while we do not have the same amount of corroborated predictive behavior, we do have a known informant with a record of police assistance, plus a known drug suspect located at a known drug trafficking corner.

Probable cause requires only a substantial chance, not an actual showing, of criminal activity (Illinois v. Gates, supra, 462 U.S. at p. 244, fn. 13), and, deferring to the magistrates express and implied factual findings, we find probable cause supported.

Disposition

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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^[1] He gave this example:  Subject A is now here on 16th and Mission. Subject B, C and D are selling for that subject. I cant see exactly where they are concealing the narcotics, but they are here. They have been here for the last two weeks. Here is the license plate of the vehicle that they drive. You might want to identify them and conduct surveillance, and I will call you tomorrow if they are back on the block so you can watch them. If I stay here and watch them too long, they are going to start thinking that I am a snitch. []  . . . []  Things of that nature.