In re Humberto J.

Filed 3/7/07 In re Humberto J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A petition was filed, alleging that Humberto J., a minor (15 years old at the time of the jurisdictional hearing), came within the provisions of Welfare and Institutions Code section 602. The petition alleged that on May 7, 2006,[1] the minor violated Penal Code section 12020, subdivision (a)(4)[2] (unlawful carrying of a concealed dirk or dagger), a felony. A second count was later added, namely, the malicious defacing of property ( 594, subd. (a)(1)), a misdemeanor. The minor moved to suppress evidence relative to the felony charge. The court denied the motion, and the minor thereafter admitted the concealed weapon charge and that he had violated probation; the misdemeanor count was dismissed. The court ordered that the minor remain a ward of the juvenile court.

The minor contends on appeal that the court erred in denying his motion to suppress. He argues that the evidence on which the court found that the police officer had a reasonable basis to detain the minor was erroneously admitted in violation of the Remers-Harvey-Madden rule.[3] Had the court properly excluded this evidence (the minor asserts), it would have been required to (1) find that the police officer did not have a reasonable basis to detain the minor, and, (2) suppress the weapon observed and seized as a result of the detention.

We conclude that the court did not err in admitting the challenged evidence at the hearing on the motion to suppress. We therefore affirm the judgment.

FACTS

We present a summary of the evidence from the hearing on the minors motion to suppress brought pursuant to section 1538.5 relevant to the issue on appeal. That evidence consisted entirely of the testimony of Juan Trujillo, a police officer with the City of Watsonville. Officer Trujillo testified as follows:

Officer Trujillo was on duty on the afternoon of May 7, dressed in police uniform. He was providing security for a large Cinco de Mayo festival occurring at the city plaza in downtown Watsonville. Approximately 3,000 people attended the event.

Officer Trujillo received a radio report from Corporal Rivera (the officer in charge of security for the event) that officer assistance was needed.[4] Corporal Rivera reported that there was a large gang fight in progress in the area of Peck Street and Union Street. Officer Trujillo responded to the call by running to the scene (about one block away).

As he arrived at the scene, Officer Trujillo observed several juvenile males run[ning] in different directions as [two] other officers [one being Corporal Rivera] were chasing other subjects in an attempt to detain them. (There were approximately eight young males fleeing.) A male whom Officer Trujillo identified in court as the minor was running from the area northbound on Union Street towards the officer. The officer drew his taser as he approached the minor, directed him to stop, and said, Police, let me see your hands. The minor stopped and raised his hands. As the minor raised his left hand, Officer Trujillo observed a knife fall to the ground from the minors left rear waist area underneath his shirt.

PROCEDURAL BACKGROUND

On May 26, the Santa Cruz County District Attorney filed an amended petition under Welfare and Institutions Code section 602 with the juvenile court below, alleging that the minor, on or about May 7, committed a felony by unlawfully carrying a concealed dirk or dagger ( 12020, subd. (a)(4), count 1); and on March 1, maliciously defaced property of another ( 594, subd. (a)(1), count 2) by tagging (defacing with graffiti), a misdemeanor. The petition also alleged that the minor had violated the terms of his probation in five respects. The minor filed a motion to suppress, pursuant to section 1538.5.

The court heard the motion to suppress on May 30 and denied the motion. The minor then admitted the allegations of count 1 and the allegation that he had violated the terms of his probation (by using marijuana, cocaine, and methamphetamine, by failing to take a drug test, by missing two court appearance, and by failing to obey all laws); the court, on the prosecutions motion, dismissed count 2. The court continued the minor as a ward of the court and ordered that his probation be continued with the normal terms and conditions of probation, including suitable 24-hour placement. The minor filed timely a notice of appeal.

DISCUSSION

I. Issue on Appeal

The sole issue on appeal is whether the court erred when it overruled the minors Remers-Harvey-Madden objection to evidence concerning the radio report of Corporal Rivera that a large gang fight was in progress one block from Officer Trujillo. The minor argues that the radio report constituted a dispatch of information through police channels and that the prosecution was therefore required to present evidence of the basis of that information to ensure its reliability under the Remers-Harvey-Madden rule. He contends that the failure of Corporal Rivera to testify was fatal to the prosecutions case because the court was required to exclude the radio report, which report, in turn, served as the factual basis upon which the court held that Officer Trujillo reasonably detained the minor.

The Attorney General responds that the courts admission of the radio report did not violate the Remers-Harvey-Madden rule, because the information in the report was based upon the contemporaneous observations of Corporal Rivera. Thus, the information was reliable, and was not the type of unreliable information obtained through police channels (e.g., an anonymous tip) that is the principal evil the rule addresses.

II. Discussion Of Propriety Of Denial Of Motion To Suppress

Our consideration of this appeal requires a two-step analysis. First, we must determine whether the radio report should have been excluded because it violated the Remers-Harvey-Madden rule. Second, we considerapplying our resolution of the first questionwhether the court below was correct in finding that Officer Trujillo had a reasonable basis for detaining the minor.

A. The Remers-Harvey-Madden Rule

The Remers-Harvey-Madden rule stipulates that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness. (Citations.) (People v. Madden, supra, 2 Cal.3d at p. 1021.) A common scenario under which the Remers-Harvey-Madden rule comes into play is where the authority to arrest comes from information obtained through a police dispatcher or from an anonymous tip. (See, e.g., People v. Orozco (1981) 114 Cal.App.3d 435; People v. Johnson (1987) 189 Cal.App.3d 1315, 1320; People v. Armstrong (1991) 232 Cal.App.3d 228, 241.)

As the court in Remers explained: To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citations.] If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; reasonable cause or reasonable grounds, . . . could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence. [Citation.] [] In sum, when an officer furnishes to another officer information which leads to an arrest, the People must show the basis for the former officer's information. . . . The absence of such a requirement would allow a police officer to manufacture reasonable grounds to arrest while circumventing the necessity of pointing to specific and articulable facts [citations] justifying his suspicions. (Remers v. Superior Court, supra, 2 Cal.3d at pp. 666-667.)

The Remers-Harvey-Madden rule only requires prosecution proof that information justifying the arrest was actually given to the police officer who furnished it to the arresting officer, i.e., proof that the source of the information on which the arrest was based was something other than the imagination of an officer who did not testify. [Citation.] The prosecution must simply show that the officer furnishing the information generating the arrest had probable cause to believe the arrest was justified. [Citation.] (People v. Armstrong, supra, 232 Cal.App.3d at pp. 245-246.) In sum, the rationale of the Remers-Harvey-Madden rule is that the prosecution must negate the possibility that the factual basis for the conduct of the field officers is made up within the police department by somebody who is trying to frame a person whom he wants investigated. (People v. Orozco, supra, 114 Cal.App.3d at p. 444.)

The minor cites In re Eskiel S. (1993) 15 Cal.App.4th 1638 (Eskiel S.), in support of his position that the radio report should have been excluded. In that case, this court addressed the application of the Remers-Harvey-Madden rule to a very different scenario than the one challenged here. In Eskiel S., the arresting officer testified to having heard a radio broadcast reporting a possible gang fight involving 10 to 12 Black persons including 1 possibly armed with a rifle . . . . (Id. at p. 1641.) The arresting officer had no basis for detaining the juvenile besides the information he had heard in the radio report. (Id. at p. 1642.) We concluded that the trial court erred by overruling the juveniles Remers-Harvey-Madden objection to the radio report in the suppression hearing. (Id. at pp. 1642-1644.) We noted that [t]he record [was] void of any evidence of the source of the information contained in the radio broadcast. (Id. at p. 1644.) Accordingly, we observed that since [a] radio broadcast which cannot be traced back to its source amounts to nothing more than an anonymous tip (ibid.), testimony of the arresting officer concerning the substance of the broadcast should have been excluded.

Eskiel S. is distinguishable. In this instance, the court below was not faced with the typical situation requiring invocation of the Remers-Harvey-Madden rule, i.e., where the source of the information from the transmitting officer (Corporal Rivera) is unknown or amounted to an anonymous tip. Here, Corporal Riveras radio report that a large gang fight was in progress was based upon his personal, contemporaneous observations. Officer Trujillo, who heard the report, knew Corporal Rivera and was aware that he was in charge of security for the event. It was reliable information, unlike the radio broadcast in Eskiel S. in which the source of the information was undeterminable. The prosecution therefore presented proof that the source of the information on which the [detention] was based was something other than the imagination of an officer who did not testify. [Citation.] (People v. Armstrong, supra, 232 Cal.App.3d at p. 246.) There is no requirement that the officer whose personal observations were relied upon for purposes of the probable cause determination actually testify to his or her observations. To the contrary, the [Remers-Harvey-Madden] rule merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable. (People v. Gomez (2004) 117 Cal.App.4th 531, 541.)

We therefore conclude that there was no error under the Remers-Harvey-Madden rule when the court admitted into evidence the radio report of Corporal Rivera.

B. Whether the Detention Was Lawful

The legal basis upon which a peace officer may detain a citizen has been explained as follows: [I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., art. I,  28.)[5] The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Ibid., citing Terry v. Ohio (1968) 392 U.S. 1, 22.) The determination of whether a temporary detention is lawful is made from an evaluation of the totality of the circumstances. (U.S. v. Cortez (1981) 449 U.S. 411, 417; see also People v. Souza (1994) 9 Cal.4th 224, 239.)

There is no dispute here that Officer Trujillos actions amounted to a detention of the minor. (See In re Christopher B., supra, 219 Cal.App.3d at p. 460 [detention where officers language or voice indicating compliance with police demands might be compelled].) Officer Trujillo received a police radio report from Corporal Rivera that a large gang fight was in progress one block away. Officer Trujillo immediately proceeded on foot to the scene, where he observed as many as eight male youths fleeing from two other officers, including Corporal Rivera. One of the youths was the minor. Based upon the information that Officer Trujillo had received by radiotogether with his observation of the minor fleeing at the timeOfficer Trujillo made the decision to detain him because he was concerned that maybe a more serious crime may have occurred, possibly a robbery, [or an] assault with a deadly weapon. The detaining officer thus possessed specific and articulable facts causing him to suspect that (1) some activity relating to crime ha[d] taken place or [was] occurring or about to occur, and (2) the person he intend[ed] to stop or detain [was] involved in that activity. (In re Tony C., supra, 21 Cal.3d at p. 893.)

As we have noted, [w]here the facts bearing on the legality of a detention are undisputed, as they are in this case, the appellate court is faced with a question of law. (Eskiel S., supra, 15 Cal.App.4th at p. 1641.) Here, there was a reasonable basis for Officer Trujillos detention of the minor. (Cf. In re Tony C., supra, 21 Cal.3d at p. 893 [detention may not be based on mere curiosity, rumor, or hunch].) Accordingly, the court properly denied the motion to suppress.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

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[1] All further date references are to the year 2006 unless otherwise specified.

[2] All further statutory references are to the Penal Code unless otherwise noted.

[3] The Remers-Harvey-Madden or Harvey-Madden rule is based on the holdings in Remers v. Superior Court (1970) 2 Cal.3d 659, People v. Harvey (1958) 156 Cal App.2d 516, and People v. Madden (1970) 2 Cal.3d 1017. These three cases established the collective knowledge evidentiary rule governing proof of the underlying grounds for an arrest or detention when the authority to arrest or detain has been transmitted to the arresting officer through official police channels. The rule is discussed, post.

[4] The minor objected to admission of this radio report. The minor claims on appeal that the admission of this evidence violated the Remers-Harvey-Madden rule.

[5] Since the passage of Proposition 8 in 1982 (California Constitution, art. I, 28), the subjective belief of the citizen set out in In re Tony C.[, supra,] 21 Cal.3d 888, no longer applies in analyzing whether an encounter is a detention. [Citation.] Rather the federal standard of analyzing the objective facts of the incident controls. [Citation.] (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2, citing In re Lance W. (1985) 37 Cal.3d 873.)