Filed 5/23/18 P. v. Owens CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN OWENS,

Defendant and Appellant.
H043339
(Santa Clara County
Super. Ct. No. C1505183)
Defendant Sean Owens appeals following convictions for grand theft and possession of methamphetamine for sale, arguing that the trial court erred in denying his motion to suppress evidence seized when he was detained on suspicion of stealing a “bait bike” owned by the San Jose State University Police Department. Defendant contends that the trial court erred by not requiring the prosecution to call a dispatcher to testify at a suppression hearing about the GPS location information obtained from a device attached to the bike; that the trial court erred in finding defendant was detained near the last reported GPS location; that officers lacked reasonable suspicion to detain defendant; and that trial counsel provided ineffective assistance by not asserting that defendant had a reasonable expectation of privacy in the contents of his pants pocket where some of the methamphetamine was found. For the reasons stated here, we will affirm the judgment as there was reasonable suspicion to support defendant’s detention.
I. TRIAL COURT PROCEEDINGS
Defendant was charged with possessing methamphetamine for sale (Health & Saf. Code, § 11378) and grand theft (Pen. Code, § 487, subd. (a)). The operative information alleged one prior strike conviction (Pen. Code, § 667, subds. (b)–(i)) and one prior conviction of possession for sale (Health & Saf. Code, §§ 11378, 11370.2, subd. (c); Pen. Code, § 1203.07, subd. (a)(11)).
A. MOTION TO SUPPRESS
After he was held to answer following a preliminary hearing, defendant moved to suppress evidence (including methamphetamine and a bike) seized incident to his arrest by the San Jose State University Police Department. The court held an evidentiary hearing on the motion.
1. Officer Munir Edais’s Testimony
San Jose State University Police Officer Munir Edais set up a “bait bike” at a bike rack near a campus library around 7:00 p.m. one night in March 2015. Edais explained that the bike was purchased by the university to be placed and monitored in areas where bike thefts are common. The bike was equipped with a GPS tracking device and a radio tracker, and police dispatchers were able to track the GPS on their computers.
Just under two hours after setting up the bike, Edais learned from a dispatcher that the bait bike was moving. Edais responded to the library and verified that the bike had been stolen. The dispatcher reported, based on information from the bike’s GPS tracker, that the bike was moving northbound on South Fifth Street. Edais proceeded toward that area to set up a perimeter. The final GPS information conveyed by the dispatcher was that “the bait bike GPS was no longer moving and that it was behind” a church that was to the rear of 55 South Sixth Street. (The trial court overruled a defense objection to Edais’s testimony about the dispatcher’s reliance on GPS tracking information that was based on People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey) and People v. Madden (1970) 2 Cal.3d 1017 (Madden).)
Edais parked his patrol car and started to walk northbound on South Sixth Street. Edais saw another officer, Johnathon Silva, about 15 to 20 feet ahead of him on foot. Edais then observed “a black male adult, wearing jeans and a white tank top” (identified at the hearing as defendant), walk out of a courtyard at 55 South Sixth Street. Defendant was the only person other than Silva that Edais observed in the area. He “seemed very winded and very sweaty.” Edais noted that defendant’s physical state was significant to him because “[f]or someone that was riding a bike, especially ... to get away from where the bike was stolen, I would assume the person would be out of breath.” Approximately five minutes elapsed between the first report of the bait bike activation and the officers making contact with defendant.
Edais observed Silva grab defendant’s hand, tell him not to walk away, and ask him about the bike. Edais and Silva escorted defendant from the sidewalk back into the courtyard, a distance of about five feet. Defendant did not cooperate with the officers’ commands. While getting defendant under control, Edais noticed the bait bike with a black jacket over it leaning against a wall in the courtyard about a foot away from him. After getting defendant under control and searching him, officers learned through a records check that defendant was on probation with a search condition.
The location of the bike—as opposed to the location provided by the bike’s GPS tracker—was explored in depth during Edais’s cross- and re-direct examination. Defense counsel impeached Edais with his preliminary hearing testimony where Edais had appeared to testify that the bike was found 50 yards west of the courtyard. Edais testified that he had misunderstood the question at the preliminary hearing and that his preliminary hearing testimony was about the GPS tracker information. Edais confirmed that the bike itself was found in the courtyard close to where they arrested defendant. But the last GPS tracker location Edais received from the dispatcher was 50 yards away from where the bike was recovered (in “the parking lot near the trees to the rear of 55 South Sixth Street”). Edais noted that in his experience GPS information is generally accurate to within a radius of 15 to 20 feet, and acknowledged that the bike was found outside that radius.
2. Officer Johnathon Silva’s Testimony
San Jose State University Police Officer Johnathon Silva largely corroborated Edais’s account of defendant’s arrest. He testified that after parking his patrol car on South Sixth Street, he “started to walk towards the area that the bait bike had -- the bait bike location was last known.” He confirmed that the bait bike location information was related to him by the dispatcher. As he was walking, he saw defendant “walking out of the courtyard of where the bait bike was supposed to be.” (Silva was never asked to clarify what he meant about the courtyard being where the bike was “supposed to be.”) Defendant was wearing a white tank top and blue jeans, and was the only person in the vicinity. Silva stated that defendant caught his attention because he was wearing a tank top despite it being a cold night, and because defendant was “sweating profusely, out of breath, and when he saw me, he began walking” away. Silva decided to talk to defendant on suspicion that he had been involved in the bike theft.
Silva testified that he told defendant he needed to talk to him, defendant stopped momentarily and asked “ ‘What did I do,’ ” Silva asked him about the bike, and then defendant started to “back-pedal a little bit.” Silva grabbed defendant by the elbow and moved him from the sidewalk into the courtyard, a distance of five to eight feet. Defendant continued resisting Silva, and Silva eventually took defendant to the ground.
3. Trial Court’s Decision
The trial court denied the motion to suppress by written order. The court stated that Silva saw defendant “walking out of the court yard where that GPS instruments [sic] had last determined the bike to be”; that defendant tried to walk away when he saw the officer; that defendant was the only person in the area; that defendant was wearing a tank top and jeans even though it was a cold night; and that defendant was “sweaty and out of breath—consistent with recent exercise such as riding a bike.” The court found that the contact escalated to a detention when Silva told defendant he needed to talk to him. The court concluded that reasonable suspicion supported the detention, based on “the proximity of time and location of the theft and the encounter together with the other specific facts articulated” by Silva.
B. CONVICTION AND SENTENCING
The case proceeded to trial; a jury found defendant guilty of grand theft but could not reach a verdict regarding the possession for sale count, leading the court to declare a mistrial as to that count. As part of a negotiated disposition after trial, defendant pleaded no contest to the possession for sale count; he also admitted the prior strike conviction and prior possession for sale conviction allegations after waiving a jury trial on those allegations; and the prosecutor agreed to move to dismiss the Penal Code section 1203.07, subdivision (a)(11) allegation that would have made defendant ineligible for probation. The parties later agreed to allow defendant to withdraw his admission to the prior possession for sale conviction in order to maintain defendant’s probation eligibility. The court granted defendant’s motion to strike the prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), suspended imposition of sentence, and placed defendant on three years’ formal probation.
II. DISCUSSION
Defendant argues that he had a reasonable expectation of privacy as to the methamphetamine found in his pants pocket; that the trial court made a factual error in finding that the GPS information showed the bike was in the courtyard; that the testimony about GPS information related by the dispatcher violated the rule discussed in the Harvey and Madden cases because the dispatcher did not testify; that the officers lacked reasonable suspicion to detain defendant; and that defendant’s trial counsel provided ineffective assistance by not asserting defendant’s expectation of privacy in the contents of his pants pocket. As we will explain, our resolution of the Harvey-Madden issue and the reasonable suspicion issue renders discussion of the other issues unnecessary.
A. HARVEY-MADDEN
Defendant argues that the trial court violated the Harvey-Madden rule by not requiring the prosecution either to call the dispatcher to testify or to introduce the GPS tracking information as documentary evidence.
When Officer Edais testified about what the dispatcher told him about the bait bike GPS tracker’s movement, defense counsel objected that “any testimony related to the GPS tracking device for which this officer lacks personal knowledge is inappropriate, and it violates Harvey-Madden[-]Remers, and it also violates Kelly-Frye.” The prosecutor responded that there was no Harvey-Madden issue because “once the officer arrives at the scene where he eventually located the bait bike, ... there was circumstantial evidence that that information was conveyed.” The trial court overruled the objection, and overruled defense counsel’s renewed objection when Officer Silva testified.
An officer may detain a suspect based on information received through “ ‘ “official channels,” ’ ” including information received from a police dispatcher. (People v. Brown (2015) 61 Cal.4th 968, 983 (Brown).) Harvey-Madden issues arise in situations where there is a report of a crime by a civilian to a police officer who then relates that report by radio to other officers even though the original officer has no personal knowledge of the report. In such a situation, upon proper objection the prosecution “ ‘ “ ‘must prove that the source of the information is something other than the imagination of the officer who does not become a witness.’ ” ’ ” (Brown, at p. 983.) The Supreme Court in Brown noted that the prosecution can meet its burden “by calling the police dispatcher as a witness at the suppression hearing or by introducing a recording of the 911 call.” (Ibid.) But as defendant acknowledges, appellate decisions have determined that though the “best way of negating ‘do it yourself probable cause’ is to have the officer who received the information from outside the police department testify, ... that is not the only way.” (People v. Orozco (1981) 114 Cal.App.3d 435, 444.) The veracity of the report can be circumstantially corroborated by evidence officers observe on the scene when responding to the report. (Ibid.; accord People v. Johnson (1987) 189 Cal.App.3d 1315, 1319–1320.) The Supreme Court has never disapproved those appellate decisions.
Unlike the typical Harvey-Madden case in which the basis for the dispatcher’s report is a hearsay statement by an unidentified person who is not part of the police force, here the dispatcher was relating machine-generated location data from a GPS tracker owned and operated by the police department. As machine-generated information, the GPS data was not hearsay. (People v. Goldsmith (2014) 59 Cal.4th 258, 274.) As non-hearsay, the information was inherently more reliable than the type of information that the Harvey-Madden rule was designed to protect against. And evidence at the scene corroborated the dispatcher’s report about the GPS tracker’s location information: the bait bike was found within 50 yards of the final location reported by the dispatcher. That corroboration distinguishes In re Eskiel S. (1993) 15 Cal.App.4th 1638. (See In re Eskiel S., at p. 1644 [finding no corroboration where the suspect was found in the general area identified in the radio broadcast, but the radio broadcast provided only the suspect’s race without any more specific information].) The trial court did not err in overruling the Harvey-Madden objection.
B. REASONABLE SUSPICION
Defendant argues the trial court’s factual finding that defendant walked “out of the court yard where that GPS instruments [sic] had last determined the bike to be” is not supported by substantial evidence. And defendant argues the trial court erred in concluding that the officers had reasonable suspicion to detain him.
1. Standards of Review
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. Though an arrest must be supported by probable cause, a detention requires only reasonable suspicion. “ ‘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. Hernandez (2008) 45 Cal.4th 295, 299; see Terry v. Ohio (1968) 392 U.S. 1, 21.) We review a trial court’s findings of fact relating to a motion to suppress for substantial evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 (Letner).) In reviewing the record to determine whether substantial evidence supports the trial court’s findings, we “do not review the preliminary examination transcript [if] there was no stipulation to its consideration by the superior court.” (People v. Fisher (1995) 38 Cal.App.4th 338, 341 (Fisher).) We review de novo the trial court’s application of law to the facts. (Letner, at p. 145.)
2. No Substantial Evidence of the GPS Location as Found by the Trial Court
The trial court found that Silva saw defendant “walking out of the court yard where that GPS instruments [sic] had last determined the bike to be.” The evidence does not support that finding. Officer Edais was questioned in detail by both counsel regarding the GPS tracking information related by the dispatcher. Edais confirmed that the bike itself was found in the courtyard close to where they arrested defendant. But he testified that the last GPS tracker location he received from the dispatcher was 50 yards away from where the bike was actually recovered in “the parking lot near the trees to the rear of 55 South Sixth Street.” The court likely based its finding on Silva’s testimony that that he saw defendant walk “out of the courtyard of where the bait bike was supposed to be.” But Silva agreed when asked whether his knowledge about the location information was based on “information relayed to you by dispatch.” And there was no testimony that the dispatch information Silva received was different from the information received by Edais. The only conclusion supported by substantial evidence about the GPS tracking information provided by the dispatcher is that the final location for the GPS tracker was as Edais described: a location in a church parking lot near the rear of 55 South Sixth Street 50 yards away from where the bike was actually recovered.
The People rely on testimony from the preliminary hearing to argue that substantial evidence supported Silva’s testimony that the tracked location was in the courtyard. But the argument is unpersuasive because we look to the suppression hearing evidence alone absent a stipulation in the trial court that the preliminary hearing evidence could be considered in deciding the suppression motion. (Fisher, supra, 38 Cal.App.4th at p. 341; People v. Neighbours (1990) 223 Cal.App.3d 1115, 1120 [“[T]he preliminary hearing transcript is not properly considered by the superior court at such a de novo hearing unless the transcript (or portions of it) are formally received in evidence pursuant to stipulation or appropriate exception to the hearsay rule.”].)
3. Reasonable Suspicion Supported the Detention
Like the trial court, we use Officer Silva’s initial contact with defendant as the start of the detention to assess its reasonableness. The officers approached defendant within five minutes of the bike being moved. The final GPS location information the officers received from the dispatcher indicated that the bike was in a parking lot within 50 yards of the courtyard from which defendant emerged. There were no other individuals in the vicinity. It was a cold night, but defendant was winded and sweating profusely despite wearing only jeans and a tank top. An officer could reasonably infer that a person became sweaty and out of breath as a result of stealing and riding the bait bike. Although this is a close case, the totality of the circumstances gave the officers an objectively reasonable suspicion that defendant might have been involved in criminal activity.
Defendant distinguishes People v. Barnes (2013) 216 Cal.App.4th 1508, where the court found police had “ample” reasonable suspicion to detain a suspected phone thief where victims gave a detailed description of the suspect’s clothing, a police dispatcher relayed to patrol officers GPS location information received from the victims’ cellular service provider, and officers found Barnes in the area indicated by the GPS location information in clothes matching the suspect’s description. (Barnes, at pp. 1510–1512, 1520.) The Barnes court found that the suspicion present there was “ample” (Barnes, at p. 1520), and nothing in the opinion suggests that its facts represent the bare minimum suspicion necessary to support a detention.
Defendant contends his sweaty and winded physical condition does not support reasonable suspicion that he was involved in criminal activity because the bike moved only a short distance in the five minutes between being taken from the library and being recovered after defendant’s detention. But whether and to what extent stealing a bicycle and moving it the distance it traveled might make someone sweat is a speculative exercise. It is not objectively unreasonable as a matter of law for a peace officer to consider the physical condition of a possible suspect when assessing whether reasonable suspicion exists to detain the suspect.
C. PRIVACY ARGUMENTS
Defendant argues he had a reasonable expectation of privacy in the methamphetamine found in his pants pocket, and that his trial counsel was ineffective for not asserting that expectation. But we have found reasonable suspicion to detain defendant, and officers discovered once defendant was detained that he was on probation with a search condition. Whether defendant had a reasonable expectation of privacy in his pants pocket therefore becomes irrelevant and we need not reach his arguments related to that issue.
III. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:



____________________________
Premo, Acting P. J.




____________________________
Elia, J.









H043339 - The People v. Owens