P. v. Creer

Filed 5/31/07 P. v. Creer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Following the denial of his motion to suppress, defendant Dwayne A. Creer pleaded no contest to one count of assault with force likely to cause great bodily injury (Pen. Code,  245, subd. (a)(1))[1] and two counts of second degree commercial burglary ( 459/460, subd. (b)). He contends that the trial court erred in denying his motion to suppress because his initial detention was not founded on a reasonable suspicion that he was involved in criminal activity. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

We take the facts from the transcript of the hearing on the motion to suppress.

At approximately 12:20 a.m. on November 4, 2005, officer Todd Opdyke was patrolling in a marked vehicle. As he was preparing to make a left turn, he was flagged down by a car traveling in the opposite direction. Officer Opdyke recognized the driver as Mr. Sief, the evening clerk at a local gas station and mini market. Officer Opdyke was aware that the market had been robbed twice within the last couple of weeks.

Sief told Opdyke that the man who was responsible for the robberies had just left the market and was walking towards their present location. After asking Sief to describe what the suspect was wearing, Opdyke asked him to drive ahead to where the suspect was walking. Sief drove a few blocks, where he pointed out defendant to Opdyke.

Opdyke followed defendant, who turned off the sidewalk and entered a park after he observed that the officer was approaching. Defendant continued to walk into the park after Opdyke ordered him to stop. Opdyke exited his patrol car and again ordered defendant to stop, which he eventually did. Defendant forcefully raised his hands in the air and shouted at Opdyke that he had not done anything. Defendant was physically resistant when Opdyke handcuffed him.

Opdyke then questioned Sief regarding how he knew that the defendant had committed the robberies. Sief stated that the daytime clerk, Mr. Sherme, had told him that defendant was the robber. Both clerks were familiar with defendant because he had been in the store many times. Opdyke learned that Sief was not present when the robberies occurred and asked for Shermes contact information. Opdyke telephoned Sherme and asked him to come to the scene to identify the defendant. Sherme arrived approximately 55 minutes later and identified defendant as the robber.

On May 5, 2006, defendant filed a motion under section 1538.5. By his motion, he sought to suppress the evidence of Shermes identification on the grounds that Opdyke did not have a reasonable suspicion to detain defendant based on Siefs statements. The motion was denied.

On June 16, 2006, defendant pled no contest to one count of assault with force likely to cause great bodily injury ( 245, subd. (a)(1)) and two counts of second degree burglary ( 459/460, subd. (b)). He also admitted one prior strike conviction for first degree burglary ( 460, subd. (a)). Defendant was sentenced to a total of six years eight months. This appeal followed.

DISCUSSION

I. Standard of Review

 The standard of appellate review of a trial courts ruling on a motion to suppress 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. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

II. The Trial Court Properly Denied the Motion to Suppress

Defendant contends that Opdykes detention of defendant was illegal because the information supplied by Sief was insufficient to provide a reasonable suspicion to support a lawful detention. We disagree.

A detention is reasonable under the Fourth Amendment when the detaining officer can 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. (People v. Souza (1994) 9 Cal.4th 224, 231.) The reasonable suspicion that justifies a detention is simply . . . a particularized and objective basis for suspecting the person stopped . . . . (Ornelas v. United States (1996) 517 U.S. 690, 696.)

Defendant contends that Opdyke was unjustified in relying on Siefs statements because he knew prior to the detention that Sherme, not Sief, was the clerk working at the market when the burglaries occurred. He therefore claims that Siefs information did not give rise to a reasonable suspicion that defendant was the perpetrator because Siefs statements were not based on personal knowledge.

The courts have recognized a distinction between informers who are virtual agents of the police and citizen informants who are chance witnesses to or victims of crime. The former are often criminally disposed or implicated, and supply their tips to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain. The latter are innocent of criminal involvement, and volunteer their information fortuitously, openly, and through motives of good citizenship. [Citation.] Because of these characteristics, the requisite showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer. (People v. Ramey (1976) 16 Cal.3d 263, 268269.) Thus, [a] citizen informant, especially one who is a victim of crime, is a reliable informant even though his reliability has not been previously proven or tested. (People v. Jordan (1984) 155 Cal.App.3d 769, 779.)

We have reviewed Opdykes testimony given at the hearing on the suppression motion and find that it does not support defendants contention that the officer knew prior to the detention that Sief was not present during the robberies. Instead, the testimony, while not unequivocal, supports the inference that Opdyke was not aware of this information until after defendant was detained. When questioned regarding statements made in his police report that arguably supported defendants contention, Opdyke testified that he learned about Shermes role after the detention. However, he also stated that it was possible Sief had mentioned it before the detention.

In any event, even if Opdyke knew before he detained defendant that Sief was not present during the robberies, we would find that Opdyke had a reasonable suspicion to detain defendant. In People v. Jordan, supra, 155 Cal.App.3d 769, the defendant had obtained inside information about a store as a prelude to a robbery by pretending to be an employee of another retail location of the same store. (Id. at pp. 775776.) After the robbery, the police obtained a search warrant of the defendants home based, in part, on the stores security officers report that he was not an employee of the other store. The security officer had obtained this information from a security officer who worked at the other store. (Id. at p. 779.)

The Court of Appeal found that, in issuing the warrant, the magistrate and affiant police officer were justified in relying on the information that the defendant was not a store employee. (People v. Jordan, supra, 155 Cal.App.3d 769, 780.) The fact the information was obtained by the security officer second-hand was irrelevant: Just as police officers may use reliable information passed on through official channels [citation], information transmitted through the internal channels of the corporation from one security officer to another does not by that fact lose its reliability. (Id. at pp. 779780.)

We believe the present case is analogous to Jordan. While Sief was not employed as a security officer, he, like Sherme, was an agent of the victim (the market), and was a person in a position to have supplied reliable information. Accordingly, the information supplied by Sief, Opdykes familiarity with Sief, as well as Opdykes knowledge that the market had been robbed previously, gave the officer a reasonable suspicion to detain defendant until Sherme could provide a positive identification.

DISPOSITION

The judgment is affirmed.

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[1] All statutory references are to the Penal Code.