*1 Dist., Mar. Second Div. Seven. B036678. 1989.] [No. PEOPLE, and Respondent,
THE Plaintiff LAZANIS, Appellant. Defendant and EUGENE ROBERT *3 Counsel LeCorvec,
Robert B. under appointment by the Court of for Appeal, Defendant and Appellant.
John K. General, White, Van de Attorney Kamp, Steve Chief Assistant General, Attorney Bertaud, Myers, Robert M. City Attorney, and Cesar A. City Deputy Attorney, for Plaintiff and Respondent.
Opinion to us after conviction has been KOLTS, J.* presented case influence of alcohol. under the motor vehicle while driving defendant the superior department the appellate was affirmed The conviction was certified and, of law questions significant because of perceived court court for consideration. Proceedings Below Facts 1986, Police Santa Monica February hours of early morning In the Greenbank, a cit- private Mr. call from telephone received a Department was a izen, possible that there person from another relaying information on at an address Storage Van and Bay City at the *4 burglary progress in radio information was transmitted in Santa Monica. This Second Street Brown Howe and by received Officers Kujuo Ms. which was by broadcast Officer Howe was the location. toward proceeded others who among transmitted the follow- situation and there. She observed the first to arrive Looks like a of there. Small white. “A vehicle out pulling radio ing message: at the by. Stand Location white. Male black. Male black. Male Toyota. driveway. Vehicle southbound.” trial, Brown, transmis- at heard Howe’s witness
Officer Linda car sion, going the defendant’s thereafter observed and within moments at defendant was stopped, Street. When the car was on Second southbound car, He slightly. staggering from the emerged The defendant the wheel. alcohol, sobriety field satisfactorily perform after failing smelled of tests, under the influence the vehicle while cited for operating alcohol. as a true copy which was certified
The offered a document People of a receipt telephone which noted the document original police department into “Possible 459 3:41 a.m. which bore the words call time stamp with the elements Code Section 459 deals business now.” Penal pursuant received into evidence This document was burglary. offense of objection. Code over 1280 of the Evidence section Greenbank, caller, from the phoned that Mr. It was also stipulated after receiving in Santa Monica Broadway at 201 Carmel Hotel located unknown informant. information from an
*Assigned by Chairperson of the Judicial Council.
53
Discussion upon
The issue which we are called to determine whether Harvey-Madden rule relative to to the detention which oc applies arrests curred this case. 689], 516 arose Harvey (1958) v. P.2d out
People Cal.App.2d [319 officers, marijuana. conviction for Police possession acting upon information to them another officer that the defendant was supplied conducted a surveillance of his activities. After watch- trafficking drugs, time, him for a him under ing they arrest recovered the period placed that the reviewing solely contraband. court found arrest was made reliance briefing on the information and from the other officer. This was arrest, held to be an inadequate basis for an and invalidated the subsequent recovery of the narcotics. Madden 971], Cal.3d P.2d Cal.Rptr.
dealt with similar facts. A officer received information from two other officers defendant was in the sale of narcotics. The engaged home, arresting went defendant’s had a discussion with the de threshold, fendant at the entered home and conducted search. The search, trial court ruled that the defendant had not consented to the but *5 that the probable officer had cause enter to and premises conduct his reversed, 1021, search. The Court Supreme at “. . . stating page an [Although may officer make an arrest based on information received channels,’ through ‘official is to show that the required officer who originally furnished the information had cause to be probable lieve that the felony. committed a We suspect reaffirmed in principle the recent case of Remers v. [87 Cal.Rptr. 202, 470 P.2d Superior 11], where we Court [1970] pointed 2 Cal. 3d out; ‘It is pp. 659, well settled 666-667 that while it bemay perfectly reasonable for in the officers field to make officers, arrests on the by basis information furnished to them other court, “when it comes to justifying police activity total in a the People must prove that the source of the information is other something than ’ ” imagination of an officer not who does become a witness.”
The between distinction the facts in these two those in cases and the case Madden, at immediately hand is Harvey In and apparent. information given to arresting officer him relayed days to hours or in advance. Here, the information was in forwarded the nature of an emergency com- munication, Further, a mere minute or two before the actual arewe stop. observe, dealing with a detention which rise gave to an opportunity without a search. in appearance of defendant resulted an arrest for stop, This is in fact a case in which the deten- under the influence. driving by cause. are supported probable tion and arrest subsequent Tony re C. 21 Cal.3d (1978) The more recent decision In that, is at “It settled 957], noting page 582 P.2d after Cal.Rptr. may justify to make an arrest that circumstances short cause or briefly detaining questioning and person officer police stopping continued, as in all “The investigation,” guiding principle, other limited California Con the Fourth Amendment and under the arising issues under in all circumstances of the reasonableness [citations], stitution ‘the security.’ personal invasion of citizen’s governmental particular [Citation.] context, in it need the limited of that invasion the present Because of scope arrest, book, belief and guilt the actual supported required charge.” criminal jail an individual on named factors, “Balancing these The critical 893: language appears page or deten- justify investigative stop have concluded that in order to courts or to the officer must include spe- tion the circumstances known apparent activity facts some causing (1) cific and articulable him to suspect occur, or about and occurring to crime has taken or relating place activity. he detain in that Not person intends is involved objectively subjectively must such a but must be suspicion, he entertain do must reasonable for him to so: the facts be such would on his position, drawing reasonable a like when police appropriate activity criminal [citation], suspect same training experience involvement person question.” same The arresting Let us that we have before us. look the evidence Brown, officer, of a of “a burgla Linda was aware broadcast possible in Santa Within ry at an address on Second Street Monica. progress” *6 received, this from moments of this broadcast a second call was time Officer location, pulling a vehicle out from this “A vehicle pulling Howe that was Toyota. Male Male out of there. Small vehicle. Looks like a black. white. southbound.” by. driveway. Male black. Stand Location Vehicle C„ justified in Tony stopping tests Officer Brown was Applying twin frame; immediacy in time the color of defendant’s automobile: there was car car; car was small color observed corresponded Toyota); it was a Mazda and not a vehicle contained compact (although and, away finally, in a direction proceeding several individuals location of business question. for investiga-
Officer Brown was entitled to detain the defendant further defendant’s tion. The observations which came thereafter such
55 and alcoholic breath for tests staggering gait an basis supplied ample resulted in a citation for while under the influence of alcohol. driving has Ojeda (1970) cited Court Appellant Superior Cal.App.3d 145], as his that Officer Brown’s Cal.Rptr. supporting position [91 observations were In Ojeda, highway officer received inappropriate. patrol a radio communication to be on the lookout for a station of a wagon similar to that description ultimately which was stopped. occupants the car had in a purportedly participated robbery (a statement which was error). The defendant was arrested and later searched on the stopped, basis of this information. The court appellate found this to be procedure improp- er as information which was offered as cause for the probable broadcast and arrest subsequent was without of the nature and proof origin of the report and therefore insufficient to supply probable for the officer’sconduct. Further, the evidence which was offered to the trial court came as the result arrest, of a search and not as the result of mere observation on the part after notes, out, officer. At citing the court ‘If page someone cries ‘Stop thief officer is not required investigate determine whether the cry in witness, fact came from the victim or a . . . before perceptive stop- ping apparent fleeing perpetrator.”
Restani v. Court Superior Cal.App.3d Cal.Rptr. 429] a case in which a certain vehicle was suspected involvement in a homi cide. The arresting officer received a radio call that there was an all points bulletin a murder regarding suspect white-over-maroon Volkswagen bus. The vehicle, officer observed defendant in a similar and approached him after he had parked. When the officer him told that he was investigat homicide, ing bus, the defendant threw open the doors of the and the officer observed what he identified as an tablet. At amphetamine no time did the officer to search the request van. The court held that the failure of the to sustain its burden of cause for detention failing as a present witness the officer who initiated the original broadcast or the officer who had the conversation with a citizen witness did not vitiate the defendant’s arrest unless the arrest was an of such exploitation illegal deten 197-198, tion. At pages “Biddle’s observation of the amphetamine tablet kit shaving was not ‘tainted’ merely because petitioner not have might the kit opened but the officer’s demand to see his . identification. . . Accordingly, can establish that the primary illegality was not a sine qua non or indispensable discovery cause of the of the physical *7 evidence, but, that at worst it merely contributed to such discovery, the exclusionary rule does not apply.” decision fails to offer comfort to defendant in the present case as his predicament arises from a deten stop, tion, and nonsearching observation. as a record exhibit which was offered has relied upon
The prosecution time stamped This document was Police Department. of the Santa Monica as a true and It is certified Record.” and headed “Call for Service of that by depart- Keane Sergeant an document original correct copy 459 to business.” “second hand info poss It on its face that ment. shows stamp 1524 Second.” The time Van and “Bay City Storage is the location “’86 FEB 4 3:41.” shows exhibit, there is a of the hearsay nature of the contents
Conceding Mr. department a call was initiated to in the record that stipulation Greenbank, of such a call receipt record which memorializes and this is a supporting With this corroboration Santa Monica Police Department. transmissions, justify stop evidence to there is sufficient radio rest In event it puts further investigation. of defendant’s vehicle for may information which stop predicated upon the contention that the was by a police agency. have been fabricated a different determine whether turn to federal decisions to
Let us then result is mandated. arrest or detention of an problem
The case
first considered
which
Whiteley
officer to another is
from one police
based
a communication
upon
The factu-
1031],
L.Ed.2d
91 S.Ct.
v. Warden
401 U.S.
Wyoming police
in this fashion: a
ally
situation
complicated
developed
county
sheriff of another
which
received a radio alert issued
The radio
car and arrest the occupants.
caused him to
the defendant’s
stop
had
justice
peace
an arrest warrant which a
bulletin was based upon
A
had supplied.
information which the sheriff
issued predicated upon
com-
of old coins and tools which
search of the car disclosed the presence
The court held that
from the burglarized premises.
the loot obtained
prised
warrant had failed to supply
sheriff
for the issuance of the
responsible
cause, and that the later
to constitute probable
sufficient facts to the court
from the same defect.
arrest and search suffered
However,
that we
resemblance to the situation
Whiteley
bears
a faint
obtained
which the
sheriff
reporting
must deal
here. The information
day following
conducted
investigation
was based
interviews
upon
recovered the loot after
arresting
break-in. The officers
defendant
car,
the arrest.
was made after
of the trunk of the defendant’s
search
case.
facts
operative
present
These conditions did not exist as
Here,
the belief that
vehicle was made under
of defendant’s
stop
crime,
namely, burglary;
ongoing
participating
defendant was
and the basis
investigation
made for the
of further
purpose
*8
arrest,
a
but
the observa-
did not result from search after
condition;
was never
search of de-
tion of defendant’s intoxicated
there
a
fendant or
vehicle as a result of the information broadcast
radio.
a
None of the decisions
to this court has demonstrated
basis upon
cited
car
which the
of defendant’s
is prohibited.
stop
v. Hensley
The
federal
on the
United States
leading
subject,
decision
675],
At pages 228-229 L.Ed.2d at the court “A page stop 612] investigate already crime completed necessarily does promote interest of crime prevention directly as investigate suspected ongoing criminal activity. Similarly, the circumstances which re exigent quire a police officer to in before a crime is step committed or are completed not necessarily as pressing long safety may afterwards. Public be less threat ened by a in a crime who suspect past now to be appears going about his lawful than business it is a suspect currently who is in the process of violating Finally, law. making stop officers to investigate past crimes may have a wider time range opportunity to choose the and circum stances of the stop.”
Now to consider those which turn on questions whether admissible justifies the conduct of Officer who ultimately Brown stopped cited appellant.
The first issue is whether the failure the prosecution to call either the Santa Monica police testify or Officer dispatcher Howe observa-
58 and detention stop state that the leaves the record such tions and conduct heard, and the The trier of fact justified. legally cannot be of defendant an identified informant who received from discloses that a call was record in the process of a crime possible of the location advised the department depart- of the by certified documents This is supported commission. by received the department from the informant was ment that the call call regarding It is clear that the radio on the date in question. 3:41 a.m. the air as it was received address was on placed at the burglary progress it. The next radio transmission who by responded Officer Brown the car who by stopped also received Officer Brown Officer Howe was by Officer Howe and given to the description which conformed generally justifiably While it can be and others. appellant which contained weak, cannot be said that this factually is that this evidence claimed vehicle. of defendant’s support in toto is insufficient to evidence testimony relative to the amount If that Officer Brown’s argued it is not change air is inaccurate does part information which came over the accurate, a small white namely, the result: the record is clear as to what “crime scene” four men in it was Toyota leaving car resembling information, it is of the part factual and south. proceeding of the record that Officer part the trial court. It is also testimony before heard it. Brown inadmissi broadcast constituted
The contention that Officer Howe’s Howe are Whether the statements of Officer hearsay ble also must fail. need not be considered. the truth of the matter asserted offered to prove declaration, it hearsay qualifies if we concede that the statement is Even statement,1 or a as a hearsay exception spontaneous for admission as a the act of Certainly explains statement.2 the statement contemporaneous makes understandable the conduct under section broadcasting 1241. the declarant under section testimony why much more reason compelling
But there is a admissi- to the by parties stipulated considered the trial court: properly section 1240: California Evidence Code by hearsay if rule the statement: of a statement is not made inadmissible [][] “Evidence act, condition, narrate, describe, by perceived (a) or event the de- Purports explain clarant; and of excitement “(b) spontaneously the declarant was under the stress Was made while (See Cooper Cal.App.2d 479 perception.” also caused such 588].) Cal.Rptr. section 1241: California Evidence Code hearsay statement: inadmissible rule “Evidence of a statement is not made [][] declarant; and (a) explain, qualify, conduct of the Is offered to or make understandable “(b) engaged in such conduct.” Was made while the declarant was Officer bility original call informant and to content of admissibility Howe’s broadcast. can a later about the party complain How agrees he should considered? *10 Harvey-Madden Whiteley Do the rules the officer require (Howe) stop who made the broadcast which caused the of the automobile be in We think produced court? not. to
Although may better be in court the officer who practice produce call, made the it is of justifying not method Admissible stop. evidence establishes to this. probable which can As stop accomplish stated in Orozco Cal.App.3d page 604], way “The best of ‘do Cal.Rptr. yourself cause’ is negating to have the officer received who the information from outside the police Here, testify, department only way.” any but that is not the claim that the report is the result of imagination is countered prosecutorial by the exis- tence of the police department record which shows the receipt burgla- ry moments report before observation Officer Howe and subsequent broadcast.
The consideration important here is whether burglary was fact committed, being but call whether radio went out justified which stop of appellant. court, The radioed statement of Officer is Howe before the and, being part the trial record adequately of the car supports stop whether Officer Howe is called as a witness or not. Returning point to the made, earlier how can it be ignore proper disregard testimony way was before the court of stipulation?
We find that there is adequate probable cause to support investigatory However, stop this case. were it inadequate, deemed be the circum- stances officer, are surrounding such that the arresting with the limited information available to her justified Tony under C. in taking investigatory Her steps which followed. observations of the defendant’s intoxicated condition then are against admissible him at the time of trial.
Disposition affirmed. judgment
Lillie, J., P. concurred. JOHNSON, J.I I respectfully regard dissent. this case to raise an issue of vital effect, importance average In majority citizen. tells law any free citizen at they state are to detain
enforcement officers the citizen suspicion” claims to have “reasonable time another officer that this other having be concerned crime without ongoing involved he that “reason- actually possessed in court officer will required prove recent unani- counter to a majority In so runs suspicion.” holding, able say nothing Court—to earli- holding the United States Supreme mous Court and other Courts Supreme Appeal. er of the California decisions overly my I I am harsh in why being do not consider To understand their necessary it is on discus- majority expand judgment opinion, sion of law. *11 of appellant’s found the observation department properly
The appellate was the charge led to his arrest and conviction on that intoxication which Wong v. burglary. (See, his of Sun investigation e.g., “fruit” of detention 441, 471, 454, 83 S.Ct. 371 485 United States U.S. L.Ed.2d (1963) 407] [9 an unlawful invasion exclud- [“testimony during as to matters observed [is] 676, 721, 679, v. 724 89 Davis 394 U.S. L.Ed.2d ed”]; Mississippi (1961) [22 sharing case a “‘the [anything (including fingerprint) S.Ct. that 1394] evidentiary of value being something common characteristic decisive to yield have an arrested to them public person which the authorities caused ” case, In instant the inadmissible].) during detention’ the during illegal the officers observed burglary investigation ap- detention the prompted test sobriety and and him to field pellant’s gait undergo breath caused him in the driving prosecution. which evidence was used drunk against concluded, validity the Accordingly, appellate department properly In validity on the the detention. driving depends the drunk conviction detention, however, the court had to deal with the order to uphold officers claimed to possess failure of the to who produce ap- the order to detain purportedly supported reasonable which suspicion ruled In a 2-1 it was pellant’s opinion, appellate department vehicle. not an unnecessary to those officers because this was detention produce the drunk conviction. upheld driving arrest this court and single The certified a appellate department question is: question. an answer to that The Does question deserves mind, my as well arrests? To Harvey-Madden apply rule to detentions as “Yes” law. But is and should be under California question answer that actually controlling has become irrelevant. Recent decisions that away from the United States Court have taken that Supreme question the United States Con- by announcing California courts unequivocally Nonetheless, neccessary an affirmative back- stitution answer. compels rule, our Harvey-Madden I start California’s state’s version ground rule. generically what is known more as the “fellow officer” Rule to Detentions as Harvey-Madden Apply I. The Continues as Arrests Law Well Under California
The officers an arrest requirement People (or who initiated prove detention) the arrest deten- request enough justify (or possessed when other officers is tion) (or actually that arrest made detention) called which “Harvey-Madden often rule.” The first an- opinions nounced this rule scale a full happened involve full arrests where measure “probable cause” was the officers’ action. v. required justify (People 971]; Madden Cal.3d 1017 471 P.2d Cal.Rptr. People [88 Harvey (1958) 689].) argue—and P.2d Cal.App.2d Har- appellate majority to rule—that this department opinion appeared vey-Madden detain rule does where the officers rather than apply With I arrest Precedent suspect. position strongly disagree. both argue against it. policy
In ruling actually as it the appellate majority ignored did department two contrary precedents which were on it binding and did so a dissent despite pointed authority. out the existence of this previous These Court of Appeal opinions Harvey-Madden addressed issue whether the precise *12 rule to applies detentions well as arrests. In Restani Superior Court a Cal.App.3d 429], Ukiah Cal.Rptr. dispatcher broad- cast a bulletin a to and maroon bus investigate Volkswagen that an unnamed “citizen” had told a Red Bluff officer was near a seen murder A bulletin, scene. California Highway (CHP) Patrol officer received the a followed vehicle the matching description, and waited for it to stop. He then approached the and the Volkswagen began talking with driver about the fact his vehicle fit the of one be description involved in a suspected Bay Area murder. Without any hint the patrolman wanted search the van, the driver said he hadn’t done all anything, threw the doors open conducted a tour of the interior for the officer’s During benefit. that tour the spotted officer what he suspected single to be a He amphetamine pill. arrest- ed driver and searched the vehicle thoroughly, uncovering marijuana LSD, as well as more amphetamines.
At the on the motion hearing did not suppress, People produce the officer or officers who initiated the all-points appellate bulletin. The court ultimately the search on upheld grounds was not a of a product detention voluntary vehicle but of the completely defendant’s opening van while engaged voluntary with the completely discussion after the defendant had stopped his vehicle for his own reasons. Neverthe- less, the bulk of court’s is devoted to an opinion issue exploration by the posed instant case—whether detention was not to be valid proved because the failed to People show the officer or who initiated the officers the vehi- suspicion” evidence rise to a “reasonable possessed giving
bulletin On the court first involved in a crime. this issue occupant cle and its were . . . established length: at considerable “It is general discussed principle circumstances warrant- suspicious are no unusual or though that even there nevertheless, may, person officer he detain detaining detention ing information basis of received investigation questioning upon or However, if the (Citations omitted.) detaining ‘official through channels.’ knowledge justifying himself not have facts personal officer detention, does him solely given but on the basis of information direction acts court, channels, the must establish in when through police furnished the showing that the officer who challenged, originally had cause to believe that the had committed suspect information least, or, was in of facts felony, very at the that such officer possession have short cause which would amounting circumstances of probable omitted.) (Citations him to make detention. As justified personally at 314: succinctly Cal.App.2d page stated in v. Hunt [supra, 311] officer from complying ‘An order one officer to another insulates order, to the for the acts done obedience assuming personal responsibility for the more supply legal but the order does not itself cause detention . fact of its cause. . . The fact that an supplies than the detention own knowledge supplying officer does not have to have the evidence personal obey for a before he a direction to detain suspect cause detention can good mean for the detention need good does not that evidence cause at trial to the detention and its As legitimate products.’ established case, if has adequate the officer who initiated broadcast applied to detain he could the detention petitioner, delegate cause properly [the officer who but he did not have cause to CHP detained suspect], detain, he could such an order to a by simply relaying not create 195-196.) (13 Cal.App.3d fellow officer to detain petitioner.” pp. *13 Restani turned announced the the court then Having general principle, the particular “According testimony the facts of the case. at presented below, by detaining patrol- the the bulletin received hearing all-points [the an uniden- originated from a conversation another had with man] in ‘citizen’ Red Bluff. The had this conversation was in tified officer who he testify court to oath. It cannot be determined whether had under therefore . . . reasonable cause to either detain or order his detention. petitioner circumstances, while acted detaining patrolman] properly Under such [the broadcast, on investigation in for in reliance the radio detaining petitioner not, activity it the total justifying the did when came to court, in sustain original] establishing probable its burden [italics 196-197, (13 added.) the detention.” at italics Cal.App.3d pp. It unmistakably unequivo- in the Restani clear. language opinion and the cally suppres- holds the must the witnesses at produce prove People deten- hearing request investigatory sion that the officers for an initiating termed wrongdoing—what generally tion sufficient evidence of possessed justify “reasonable the detention. suspicion”—to the the on other ultimately upheld grounds Since Restani court search after to discount the ruling illegal, might tempted detention some However, as some of dictum. holding Restani on the detention issue specie only to turn Court sceptics Ojeda these need Superior Resta- 145], decided less than month before Cal.App.3d Cal.Rptr. by very ni panel. and same
In another CHP officer Ojeda fitting description automobile stopped by a robbery. broadcast a vehicle involved in a dispatcher being During large the driver the officer discovered a amount “pat-down” change. shortly Other officers arrived and searched the further. discov- They suspect ered narcotics nar- ultimately prosecuted driver on paraphernalia. charges. cotics
At the suppression hearing, once failed to again produce initiating officers the broadcast had “reasonable cause” detain the suspect’s vehicle. After considering People’s argument at broadcast was entitled least to same an anonymous status as com- considerations, plaint, the Court of “Despite ruled: it Appeal foregoing is concluded the face of defendant’s persistent objections was erroneous to uphold validity of the arrest nature proof without detention, which, transmitted, origin report when resulted unfair, arrest search of the defendant. It is not even not constitution- ally so, to insist that the who required,1 are the best do People, position to issue, come forward the evidence on that it is once raised properly the defendant.” (12 at Cal.App.3d added.) italics p. on
Based holding, Ojeda court issued a man- peremptory writ of date directing the grant court to the motion to superior (12 suppress. The Restani Cal.App.3d p. 921.) opinion contains the more thorough ' why discussion of Harvey-Madden rule applies to detentions as well as arrests. The Ojeda conclusively decision establishes the failure to abide in a that rule setting detention sufficient *14 supplies grounds suppress is the product of the unsubstantiated detention. In view of the existence of these clear and a binding precedents court, higher was not have appellate department only wrong may 1 Supreme year Ojeda The United States Court in a a case decided after erased doubts requirement merely Whiteley this was a constitutional a not 306, matter of “fairness.” See v. War 64-68, (1971) 401 pages den U.S. 560 L.Ed.2d 91 S.Ct. at discussed [28 1031] infra. rule as in the instant case on the issue jurisdiction it did
been without Equi- (Auto as well arrests Harvey-Madden applies detentions whether 321, Sales, 450, 455 Cal.Rptr. v. Inc. Court 57 Cal.2d ty Superior [20 937]). P.2d Law, Federal Decisions Irrespective Require II. Proof California a “Reasonable Initiating Request Detention Possessed Officers Officer Criminal Activity the Detainee Was Involved in Suspicion” court, is not Restani and unlike the bound appellate department, Sales, Court, 455). v. Cal.3d at Equity Superior supra, p. Inc. Ojeda (Auto authority on the issue we would Accordingly, opinions were these reach the result as the free—in if not in sound reason—to same theory Harvey-Madden and hold the rule does department majority appellate However, has been even theo- to detentions. foreclosed apply option States States Court has decided the United ry by Supreme what United law officers of the prosecu- Constitution of local enforcement requires seek their arrests and detentions in court. justify tors who decision, Court’s Madden year In after the California Supreme a rule essentially the United States Court announced identical Supreme rule. It “fellow rule” (and California’s is called the officer Harvey-Madden “ Warden, occasionally Whiteley rule”). leading (Whiteley In the case Laramie, arrest- stopped 401 U.S. a car and supra, 560) Wyoming, a radio of another occupants ed the based on bulletin issued sheriff bulletin, turn, The on an county. radio was based arrest warrant which conclusionary on the sheriff had justice peace granted complaint enough The court first found the sheriff lacked highest nation’s supplied. conclusionary since his com- to arrest without warrant probable It next fact the solely on an unnamed informant. ruled the based plaint individuals in the automo- Wyoming police found described described reliability bile did not furnish corroboration “that would either the support con- of the informant or the informant’s conclusion that these men were (Id. Supreme nected with the crime.” L.Ed.2d at p. p. 313].) then the issue the Laramie nevertheless police Court considered whether radio vehicle rely stopping were entitled on the bulletin described arresting suspects. the described not, course, Laramie entitled to police “We do that the were question Certainly the radio officers called upon act on bulletin. strength are to assume that executing to aid other officers in arrest warrants entitled requisite the officers aid offered information requesting magistrate Where, cause. how- judicial assessment support independent *15 ever, true, arrest cannot contrary illegal the to be an otherwise turns out on rely the decision officer to instigating insulated from challenge arrest. fellow officers to make the
. . officer was not himself of factual data arresting possessed Daley Whiteley informer’s tending corroborate the that commit- tip Therefore, crime. his constitutional rights ted the arrest violated petitioner’s the the Amendments; under Fourth and evidence secured as Fourteenth thereto been his trial.” U.S. at (401 incident should have excluded from 568, 569 at p. 313].) L.Ed.2d pp. [28
A has in leading Whiteley commentator construed this to mean passage immune a if he arresting the is from civil lawsuit acts in response an officialbulletin even if that bulletin without was issued exclusionary arrest. But if “the arises in an rule question context rather than officer, in an action against arresting the if it turns out that no there is ., . warrant. then it must be shown that grounds there were for a warrant- arrest in less the hands the arresting agency officer or or officer LaFave, him prompted to make the arrest.” Search (2 and Seizure ed. 1987) (2d p.7.) 1985,
In Court Supreme specifically very addressed question in raised appeal—whether same applies the context principle detentions as well In as arrests. United States v. Hensley 469 U.S. L.Ed.2d 675], 105 S.Ct. a court detention in Cov- upheld ington, Kentucky, of a carrying vehicle who was the suspect subject of Bernard, flyer” Ohio, “wanted St. issued But in police. upholding detention the nation’s court made it highest clear “fellow officer” rule court, applies detentions not arrests. just for a unanimous Writing Justice that, Day Sandra O’Conner ruled: “We a flyer conclude or has bulletin if been issued on the basis articulable a reasonable supporting suspicion facts offense, wanted has committed an then person flyer reliance on that identification, justifies or bulletin check ... stop omitted], [citation If has been flyer issued in absence a reasonable then a suspicion, stop objective in the reliance violates the ... upon Fourth Amendment. It objective flyer or reading bulletin that determines whether other defensibly officers can act police in reliance it. As- on [Citation omitted.] suming Terry the police make a reliance stop objective flyer on bulletin, we hold that the evidence uncovered in the course of the admissible who issued flyer or bulletin original] [italics if a reasonable possessed justifying a suspicion omitted], and stop, [citation stop that fact occurred more intrusive than significantly *16 66 232- (469 U.S. at pp. have the issuing department.”
would been permitted 614-615], added.) italics L.Ed.2d at pp. [83 Bernard, Ohio, was St. Hensley emphasizes policeman The the opinion about length testified at hearing. at the He suppression personally produced in the crime and who was an informant who had participated peripherally of this that crime. On the basis to describe “wealth of detail” about able a the Court that Court held: “We District testimony agree Supreme a based on suspicion, specific the St. Bernard reasonable possessed police . facts, . . Hensley robbery. in an articulable that was involved armed was that testimony\ St. established Bernard [The informant officer’s ‘to a reasonable criminal and credible arouse sufficiently suspicion reliable facts and articulable activity by specific and to constitute suspect] [the ” 233-234 U.S. at underly (Italics added.) (469 pp. needed to a stop.’ L.Ed.2d at p. 615].) Hensley opinion
The clear
quoted language
implication
testimony
suppression
had the
failed to
at the
prosecution
produce
that
thereby
the informant and
hearing from the Ohio officer who interviewed
met its
“reasonable
it would not have
suspicion”
acquired
requisite
have been
resulting
from the detention would
burden
have
testimony
proved
Without that
would not
suppressed.
a
flyer
suspicion
the “officers
the bulletin
reasonable
issuing
possessed
in the
reliance
consequence,
objective
As a
“the
justifying
stop.”
flyer]
bulletin or
violates the Fourth Amendment.”
upon [the
law
commentator on the
Hensley
by leading
was
opinion
predicted
Whiteley
of the earlier
reading
of search and seizure as the
logical
“
for arrest is not conclusive-
Whiteley
decision:
teaches
made, for
that the arrest be
ly
asking
established
communication
police
make seizures
police
otherwise such a communication would allow
so,
being
under
Fourth Amendment. This
grounds
without
required
communication,
an arrest or
it must follow that such a
whether
seeks
of rea-
conclusively
does not
establish the
stopping
investigation,
degree
for
a brief on-the-street detention
suspicion
justify
pur-
sonable
required
LaFave,
14,
added.)2
(2
3.5(b), p.
italics
poses
investigation.”
supra, §
pre-Hensley
supported
People’s position in this
In United States
One
federal case
case.
Appeals upheld
a detention
v. Hernandez
486 F.2d
the Seventh Circuit Court
initiating
possessed “reason
requiring proof
based on a
without
broadcast
arrest,
support
“Although
it was
able cause.”
the radio bulletin
not sufficient
an
was
(486
617.)
support
investigatory stop.”
p.
sufficient to
F.2d at
Hensley,
sharply
opinion
Hernandez
Supreme
Even before
Court announced
Mobley (4th
(United
Cir.
other
it.
States v.
criticized
federal courts
refused to follow
only proved
“rea-
1983)
superior
had
superior
For all these than sufficient conclude the rule more Harvey-Madden in law and “fellow officer” called the rule California to the of rule federal continues to establishment jurisprudence apply as the suspicion” “prob- “reasonable for detentions as well establishment able cause” for arrests. Hearing Presented at the to III. Admissible Evidence Was Insufficient to the Conclusion the Directive
Support Responsible Officers for Actually Appellant’s Suspicion” Detain Vehicle Possessed “Reasonable the trial before it all elements proving Had court had admissible believe, difficulty have I no story of the would us would have People to wrongdoing the officers had sufficient evidence of concluding possible a detention of this vehicle its justify occupants investigation and it is a far on the basis of burglary. But different whether possible question actually trial court make the the admissible evidence before the it could neccessary dispatcher alleged- The did not call the who finding. prosecution did the ly anonymous received the and broadcast it to the officers. Nor tip bur- alleged call Officer Howe who arrived at the scene of the prosecution the order to detain vehicle. Instead glary appellant’s broadcast Greene, heard rely testimony elected to on the of Officer who prosecution car, as its sole response appellant’s both these broadcasts and detained law enforcement witness. anony-
I not have do to reach the whether existence question about a in the absence adequately proved mous was tip burglary progress testimony from or the I have serious tipster dispatcher, although even was assuming tip doubts it was established.4 But existence of underway Purportedly, anonymous tipster burglary told a that a was Mr. Greenbanks facility storage relayed tip telephone over the the Santa at the and Mr. Greenbanks However, dispatcher. prosecution produce Mr. Monica chose not Greenbanks telephone tipster purportedly dispatcher or the or the other who received the Harvey-Madden satisfy prosecution Mr. and White call from Greenbanks. The tried to ley-Hensley by introducing paper the con slip rule labelled “Call For Service Record” at hearing. admissible tinued contends this “Call for Service Record” is an coming from the public proving report record was received. This form was certified as into vari- Department Santa Monica Police files and does have bits of information scratched absolutely showing crucial to verified, testimony I find Officer Howe’s failure to call vehicle. Thus the detain appellant’s suspicion” “reasonable itself. fatal and of officer” witness was this “fellow and his she observed appellant could have testified allegedly Officer Howe and then Bay Storage Company at the Cities friends move boxes around called this officer automobile. Had the in the small white depart broadcast claimed Officer Howe what Officer Brown seeing she testified saw, corroboration enough have supplied she would probably though Even investigation. the order to detain for anonymous justify tip the location actually boxes from anyone removing Howe did not see Officer confirm the enough have been what she did observe would allegedly anonymous something suspicious source that telephone report and his could colleagues at the storage Appellant happening company. facility merely and been storage have a theft from the already completed discovery of the theft. rearranging the boxes to postpone *19 however, call This is but idle since the did not Officer People speculation, True, a testify Officer Brown did she heard Officer Howe broadcast Howe. or stealing moving over her car radio that the were either report suspects However, in a auto. there leaving boxes around and then were small white Officer Howe testimony are two with Officer Brown’s about what problems broadcast.
First, by evidence of what Officer testimony Brown’s is refuted direct At the actually storage company. Howe broadcast from the area of the testimony anonymous linking ous boxes. But there was no under oath either this form to admissibility meaning Accordingly, assuming explaining instant case of entries. record, seriously slip question can naked of paper public of this of as a I whether it stand testimony testimony dispatcher or officer who explanatory as a substitute for the other may report anonymous tip Mr. Greenbanks. purported have received the from fundamentally, accept Record” as related to the Still more even if we this “Call for Service anonymous alleged tip represent prove it evidence to from the informant does not sufficient majority dispatcher made. The the call was received and was the basis of broadcast admissibility sufficiency. equate piece evidence can be admissible on a seems to with Yet of (Carlton Department being prove certain fact that fact Mo- issue of without sufficient to of 809]). Cal.App.3d CaI.Rptr. tor Vehicles 1428 [250 report at the same time he purported Evidence an officer recorded a from an informant credibility nothing of the claim he actu- told other officers he had this information adds to the ally passing report. received such a If an officer wants to “manufacture” only along it takes a little extra effort to untrue information or observations to other officers contemporaneously police report in a or other that same “manufactured” information write Harvey-Madden slip paper. If the and White- possible record. It is not to cross-examine a of report ley-Hensley introducing an written in lieu of rule could be satisfied officer’s himself, virtually meaningless. Only of because I find the existence the rule would be outright anonymous dissenting tip of case do I refrain from irrelevant to outcome this majority’s evidentiary issue as well. on the resolution of this court, to the and defense counsel listened direction of the the prosecutor content. The stipula- made and its tape stipulated the broadcast Howe the brief any mention observations on scene. Instead reports tion no the vehicle be detained describing broadcast contained a bare order stipulation coupled the direction in which it was proceeding. whose broadcast testimony the failure to offer the the officer testimony Brown’s accuracy real on the Officer dispute casts doubts ever reason to second trial court’s point. guess on this Indeed there decision, One this is it. has to put at least apparent—or implied—credibility recollection of Officer eyes accept blinders over one’s Officer Brown’s attorneys two who Howe’s broadcast the face of stipulation no reference to Officer Howe’s listened the broadcast that contained activity (This site. does mean Officer suspicious observation of Brown in her testimo- Howe did not in fact observe what Officer described in a ny. police report But one observations were recorded suspects those than hearing being report- Officer reviewed for the June rather Brown early February 1986.) morning ed over the airwaves in the hours of Accordingly, this is that rare case where the Court of would Appeal I not take discounting testimony trial court credited. need justified however, second, funda- extraordinary because there more step, mental, testimony what Officer Howe problem with Officer Brown’s about broadcast. testimony heard Officer Howe the truth of Officer Brown’s she
Accepting activity, testimony broadcast had observed event suspicious she *20 saw hearsay actually is on the whether Officer Howe question inadmissible Whiteley-Hensley the must anything. Harvey-Madden Under and to just the officer claimed make the observations not produce who claim. follows for the same officers who heard him broadcast to reason the must the officer who claims have received produce heard just information from an the officers who him make informant that claim. The the rule is to “manufactured” purpose guard against might reasonable Just as “manufac- probable (or suspicion). cause informant he heard an broadcasting report ture” cause a false probable easily a he could “manufac- say just a described committed crime person had de- report ture” a false he seen the by broadcasting Unless the officer person suspiciously. scribed commit the crime behave into court under oath to cross-examination there brought subjected and he way actually no whether he saw or heard what testing reported seen have or heard his broadcast. testify, Harvey-Madden Whiteley-
Since Officer Howe did not under any must she that she observed Hensley disregard this court claim broadcast those al- Without Bay Storage Company. Cities activity at the suspicious observations, anonymous tip no corroboration of there is leged corroboration, And, anonymous tip that broadcast. without dispatcher alleged to detain. The “reasonable suspicion” not rise to the level of does might someone who conveyed through his anonymous tipster tip fact the not elevate Greenbanks—does as a “citizen informant”—Mr. qualify a reporting a “citizen informant his to the ranks of tip himself nor tipster crime.” testify, did not basic. Since Officer Howe is even more problem
But that disregard part us to Whiteley-Hensley require Harvey-Madden burglary vehicle to the possible broadcast which links this specific her This is not a case to the anonymous allegedly reported dispatcher. tipster in a individual described the informant himself said described where best, in the anonymous At committing tipster vehicle was crime. individual or individ- instant case he had observed an undescribed reported None of the evidence uals at a described location. committing burglary say of de- nothing he even mentioned a vehicle was involved to suggests Officer only justification vehicle. So the scribing appellant’s particular vehicle as other opposed had for and his detaining appellant Brown street was the broadcast vehicle that have been down the might wandering in the suspect- this described vehicle was involved saying from Officer Howe check makes much of they majority ed were sent to out. burglary that Officer Howe broadcast what she broadcast—that defense stipulation However, in a certain direction. car of a certain description proceeding attorney anything stipulated in the record the defense nothing suggests True, the that Officer Howe indeed uttered. more than these were words “admissible”—admissible attorney the broadcast was stipulated attorney nothing stipulat- the words were uttered. But establishes prove the “truth” the words asserted. prove ed the broadcast was “admissible” And, establishes the defense nothing stipulated more importantly, basis Officer Howe had a reasonable broadcast was “admissible” prove *21 testimony at the hear- those So without Officer Howe’s uttering for words. her a reason- actually giving she saw at all ing anything we have no proof any way in the sus- vehicle was connected with able suspicion appellant’s Harvey-Madden If thus detention.5 activity criminal and warranted pected 5 deserves, majority than it the attempt Officer Howe’s broadcast In an to make more of accepted the hearsay can be argues exceptions and therefore opinion it falls under two However, fails just the broadcast to show the statement was made. truth of the statement not not be one or the other would qualify exception under either and even if admissible under to actually suspicion” to order possessed required the “reasonable prove sufficient to the officer the car detained. pro- the gives little credit to suggestion “spontaneous is a declaration” this broadcast hearsay key exception is that element of this fessionalism of Santa Monica officers. The failure of evidence for suppression are ever to Whiteley-Hensley require
and in the State of the “fellow officer” rule the standards comply proof to with California, is that case. of in to attempt bit its majority arguing
It is a difficult to divine what they contending One is that are possibility avoid this inevitable conclusion. by startling incapable of was excited event she was de- was uttered while declarant so (2d (Jefferson, thinking Cal. Benchbook ed. liberating or she Evidence about what observed. 13.1, 369-378, Johnson, therein; 1982) Cal. Trial Guide pp. and cases cited § 40.39, 40-155-40-162, therein.) police officers pp. cases Is it reasonable to assume and cited § Howe, merely from general-—or particular—would in in suffer that level of stress ob- Officer sincerely (and hope car? I serving suspects leave a warehouse in a small white think some event, “spontaneous not). as a declara- In since the did not tender this statement susceptible prove especially to stress or no was laid to Officer Howe was tion” foundation unusually indepen- startling departure Nor there evidence this was an she observed. that actually proving dent the officer’sbroadcast the event occurred. ordinarily “contemporaneous is admis- likewise fails as a statement” which broadcast turning explain why engaging in some as over deed. sible to a declarant is transaction such Jefferson, 378-381, Benchbook, 13.1, therein; (See supra, and cited pp. Cal. cases Evidence § 40-165—40-169, Johnson, Guide, 40.40, therein.) supra, pp. and cited Cal. Trial cases § only observing the acts Here the the broadcast “makes understandable” are conduct majority’s logic, depart making According to the the officer car the broadcast itself. car, suspects leaving the broadcast is admissible to “make broadcast were therefore information, is, why she that to show she indeed observed understandable” broadcast that “suspects” something suspicious thus their This construction do ordered detention. hearsay “contemporaneous exception rule one statement” would swallow Any hearsay “explain” “make understandable” gulp. statement would admissible to why can made is made statement. “You infer the statement declarant declarant that therefore, it; hadn’t what he said he saw he wouldn’t have said true because if he seen repeal prepared to its we are to prove statement is admissible the truth of content.” Unless rule, hearsay rejection majority’s logic policy compel that at- and the behind rule hearsay exception prove tempt “contemporaneous use Officer Howe ac- statement” tually appellant’s car. possessed suspicion” “reasonable to order detention of assuming “spontaneous as a statement” or Even Officer Howe’s broadcast were admissible statement,” “contemporaneous it would not constitute establish Howe sufficient actually possessed suspicion” appellant’s pointed out “reasonable to detain automobile. As 4, sufficiency. (Carlton (see p. admissibility v. De- ante) equate fit. does not with earlier Vehicles, best, 1428.) At partment supra, Cal.App.3d the broadcast is untest- Motor very extrajudicial is- to infer the truth of what the declarant said when the ed statement used actually is “weaker dispute saw what she said she saw. This sue is whether that declarant pro- satisfactory clearly power People] to “it was and less evidence” when within [the evidence,” is, satisfactory Consequently, stronger Officer herself. duce and more that Howe Code, (Cal. 412.) requires viewed distrust.” Evid. the Evidence Code this evidence “be § enough significantly, content is itself Even more to hold that evidence the broadcast’s actually suspicion possess claimed to prove possessed the officer the reasonable he Harvey-Mad- effectively Contrary to abolish the “fellow officer" rule. what broadcast would Whiteley-Hensley arresting/detaining have to require, officer would intro- den and justification his That would be he heard fellow officer broadcast. duce arrest/detain necessary enough prove actually possessed the fellow cause/reasonable *22 This, broadcast, effect, self-validating. possess. in suspicion he The would be claimed course, Harvey-Madden rejected in precise is notion which California courts Whiteley-Hensley. rejected Supreme States United Court vehicle even without justified Officer Brown in stopping appellant’s was suspected burglary. Officer broadcast that vehicle to the linking Howe’s is, were That because this an situation where the officers emergency entitled to stop to a crime in Officer Brown was responding progress crime scene. To anywhere vehicle on the streets near the driving suspected be safe from state this is to refute it. No one would startling proposition arbitrary anywhere intrusion while in their cars in the state officers could detain them an a crime everytime anonymous tipster reported vicinity they driving. somewhere in the of where were progress general only The second but likely, slightly alarming, explanation and more less majority they Harvey-Madden Whiteley-Hens- for the is believe opinion ley somehow to detentions for crimes and not to apply completed mysterious detentions for crimes in distinction finds absolute- progress. ly they no the cases.6And it defies It are support logic. appears confusing the question of the amount of evidence the officers must in the field possess limiting before someone’s the have question whether will much later in prove they the courtroom whether indeed possessed amount requisite of evidence.
I have no call to whether dispute quantum some lesser of “reasonable should be suspicion” where officers are required detaining people during investigation of a “crime in than progress” they is where are required investigating crime.” That is not the issue in “completed simply this case. Whatever might argued about not as much of officers requiring respond- in the “heat of ing the moment” to an crime has no relevance ongoing 6 majority opinion Hensley quotes language distinguishing The from detentions to investi already gate completed activity. investigate ongoing (Maj. crimes from those to criminal ante, opn., pp. 57-58.) majority implies Supreme at The this means the Court does not intend Whiteley-Hensley apply investigations arising “ongoing rule to to detentions out of activity.” Quite contrary. Hensley criminal quoted language is from taken out of con part argument already text. It applies of the court’s that the “fellow rule officer” com pleted just ongoing activity. already applied crimes not criminal The court understood it to in vestigations progress. Hensley of crimes in The defendant in conceded that. But he contended officers should not be to detain allowed someone on basis of broadcast another officer claiming may suspicion” suspect made he had “reasonable have been involved a “com pleted Supreme majority crime.” The paragraph quoted—acknowledged Court—in the investigations ongoing investigations there were distinctions between crimes and of com pleted type crimes. But it found those distinctions did not make a In either in difference. vestigation, suspect officer can detain a on the basis of he is another what told officer— long proved suppression hearing actually so possessed at the that the other officer ante, Hensley suspicion” (See language quoted, pp. “reasonable he claimed. 65-66 of So, dissenting opinion.) supporting departure far from rule in from the “fellow officer” ongoing investigations, Hensley foursquare proposition the instance of crime for the stands application ongoing that when it comes to of that rule there is no salient difference between completed crimes and crimes. *23 actually pos- the officers prove to the burden to prosecution’s
whatsoever might be. quantum that of evidence quantum required—whatever sessed or, dispatcher in to The decision the instant case not either produce in hearing at was made critically, Howe the suppression more Officer No, in progress. heat while a crime night investigating the fevered of cold, many months after calculating dawn during this decision was made any this danger months after there was many situation and emergency crime would continue. suspected particular those officers hearing to court Requiring produce prosecution law had enforcement indeed possess prove who evidence needed in no sense interferes with suspicion reasonable detain appellant crimes or to ability ongoing respond quickly appropriately officers’ to believe are involved they detain those whom have reasonable suspicion exactly to do prosecution required crimes. And indeed unless the those as out arising out of crimes as well those arising ongoing that detentions much our protection crimes we will lose of constitutional completed of citizens are at least as Average unreasonable searches and seizures. against rea- a claim some policeman possesses detained under susceptible being activity they are they are involved in criminal suspicion ongoing sonable they suspicion reasonable being police of detained under claim possess rules the need not majority committed a crime. Yet the past opinion sus- actually the reasonable showing possessed produce ac- important the detention this class prompted picion I tions. cannot go along. is to possibly accomplish can save thing exception expense some inconvenience and since law enforcement call officers as witnesses at
they initiating suppression will not have to no one promised out of “crimes in But hearings arising progress.” even be costless. Sometimes we rights constitutional would preservation rights free in order to guilty go guarantee have to let criminals intrusion. How much less governmental innocent citizens to safe society yet protections on essential to constitutional equally burdensome every fully justify government financial expense requiring citizen, during have including of a those claimed to occurred “seizure” “crime progress.” I such a issue. Indeed
It is seldom a court divides over fundamental dimension since this division anything particular cannot recall equal connection language It is with reluctance I use such strong created. I I be remiss I did not whom so Yet would colleagues deeply respect. *24 they implicate of our differences—for significance depth expose it, which, to the continued I see are essential rights procedural practical unwilling citizenry I fear a viability protections. of basic constitutional every circum- protections its constitutional enforcing the cost pay in all circumstances—if protections is destined to lose those stance haul. certainly long over the immediately then most June Court was denied review the Supreme Appellant’s petition Mosk, J., Broussard, J., that the petition were of opinion 1989. granted. should be