People v. Armstrong

• Decision Date: 15 July 1991
• Citation: 232 Cal.App.3d 228,283 Cal.Rptr. 429
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff/Respondent, v. George Eugene ARMSTRONG, Defendant/Appellant. A049999.

Page 429

283 Cal.Rptr. 429

232 Cal.App.3d 228

The PEOPLE, Plaintiff/Respondent, v. George Eugene ARMSTRONG, Defendant/Appellant.

A049999.

Court of Appeal, First District, Division 2, California.

July 15, 1991.

Certified for Partial Publication ^*

Harvey A. Sniderman, Pleasant Hill, by appointment of the Court of Appeal under the First Dist. Appellate Project's Assisted Case System, for appellant George Eugene Armstrong.

Daniel E. Lungren, State Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., George F. Hindall, III, and Deputy Atty. Gen., Atty. General's Office, San Francisco, for respondent the people.

PETERSON, Associate Justice.

George Eugene Armstrong appeals from a judgment of conviction following a jury verdict finding him guilty of possession of cocaine. (Health & Saf.Code, § 11350.) He claims his conviction must be reversed because the trial court erred when it denied his Penal Code section 995 (section 995) motion. Appellant also maintains the trial court improperly denied his request for probation.

In affirming, we will hold that the "good-faith exception" enunciated in United States v. Leon (1984) 468 U.S. 897, 922-925, 104 S.Ct. 3405, 3420-3422, 82 L.Ed.2d 677, relied on to validate an arrest, does not relieve the prosecution, on defense demand therefor, of the necessity of proving that the arrest warrant information furnished to the arresting officer and justifying the arrest was not falsely manufactured. On reexamining People v. Romanoski (1984) 157 Cal.App.3d 353, 204 Cal.Rptr. 33, we will further hold that the means of proving such arrest warrant information was not falsely manufactured is not exclusively limited to production of the original arrest warrant or a certified copy thereof.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 1989, near 3:30 p.m., Richmond Police Officer Edward Sousa was on patrol when he saw appellant, who was driving a moped, cut in front of a car causing it to brake suddenly. Sousa stopped appellant and asked him for his driver's license. Appellant was unable to produce one. Sousa then asked his dispatcher to run a license and warrant check on appellant. The dispatcher replied that appellant's license had been suspended and that a warrant had been issued for his arrest.

Sousa arrested appellant and searched him for weapons. He found none but noticed a brown paper bag protruding from appellant's pocket. Sousa asked what was inside the bag. Appellant replied, "candy." ¹

Sousa placed appellant in the patrol car and transported him to the Richmond police station. While booking appellant, Sousa noticed that the paper bag was gone. When Sousa asked what had happened to the bag, appellant replied that he knew nothing about a paper bag. Sousa then went to the patrol car and searched it. There, tucked into the rear seat, he found a brown paper bag. Inside were seven plastic bags each containing a small amount of cocaine.

Based on these facts, a jury convicted appellant of possession of cocaine. (Health & Saf.Code, § 11350.) In a court trial which followed, a probation ineligibility allegation pursuant to Health and Safety Code section 11370, subdivision (a) was found true. After the court sentenced appellant to the low term of one year and four months for his conviction, he timely filed the present appeal.

II. DISCUSSION

A. Denial of Section 995 Motion

Appellant's first claim of error relates to denial of his pretrial motion to dismiss the information filed in superior court.

At the preliminary hearing in the municipal court, Officer Sousa testified he arrested appellant because he was advised that appellant's license had been suspended ² and that a warrant had been issued for his arrest. Citing Romanoski, supra, and People v. Ramirez (1983) 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761, defense counsel, on apparent prehearing notice to the prosecution, moved that the arrest warrant be produced to prove that probable cause for the arrest in fact existed. In response, the prosecutor presented, as People's Exhibit 2, ³ a computer printout of official information received, as pertinent here, by the Richmond Police Department from the Contra Costa County Sheriff's Department; it described the warrant by number, and characterized it as an "outside misdemeanor warrant," issued for appellant's failure to appear on a misdemeanor charge of violation of Penal Code section 417, subdivision (a)(2) (exhibiting a firearm in a rude, angry, or threatening manner). Appellant argued that under Romanoski the computer printout was insufficient and, thus, moved to suppress the cocaine obtained following his arrest. The magistrate denied appellant's Penal Code section 1538.5 motion to suppress the cocaine seized from him after his arrest for lack of the warrant's production.

After first expressing skepticism that a ground for appellant's arrest was his driving on a suspended license, ⁴ the magistrate denied the motion to suppress, ruling that Exhibit 2 was "adequate" to prove probable cause therefor.

In the superior court, appellant filed a motion under section 995 to set aside the information charging him with cocaine possession. The "sole issue" he urged was "the very narrow proposition that the District Attorney's Office ... under Romanoski is required to produce the actual warrant at the Preliminary Hearing, which they did not do." Although the People briefed an alternative issue (on which the Attorney General on this appeal solely relies), i.e., whether independent probable cause for appellant's arrest existed aside from the arrest warrant, ⁵ neither the trial court nor the committing magistrate considered such claim of independent probable cause as justifying appellant's arrest and search incident thereto.

The superior court, in denying appellant's section 995 motion, stated: "This is once again an example of a case that is saved by the broad brush of Leon."

Appellant, at the superior court hearing on his section 995 motion, stated the "sole issue" as failure "to produce the actual warrant at the Preliminary Hearing"; and did not urge as error either the lack of foundation or a hearsay objection to Exhibit 2 made expressly or implicitly at the preliminary hearing. ⁶ The district attorney, arguing in limine motions at trial, characterized the grounds of appellant's arrest as "pursuant to [that] warrant," and stated "Officer Sou[s]a was conducting the arrest pursuant to a warrant out of the Bay Court on an unrelated case."

We find it unnecessary to decide the People's claim on appeal of grounds for arrest independent of the arresting officer's receipt of arrest warrant information. We will rest our decision on analysis of the two principal questions this case presents: the effect here of the "good-faith exception" of Leon, and the continuing viability of the "rule" of Romanoski.

1. California Law Pre-Leon

California courts have long and consistently rejected the contention that probable cause for arrest is established where arresting officers are proven to have relied on information furnished by other officers in their own departments, without further prosecution proof the information on which the arresting officers acted was actually given to those officers who transmitted that information to the arresting officers. The further proof requirement was not established to prove the information furnished the arresting officer was true; rather, it was established to prove that the officers furnishing the information to the arresting officers which triggered the arrest had actually received it, i.e., that the information was not falsely manufactured by those reporting it to the arresting officers to furnish ostensible grounds of probable cause for arrest. This requirement is sometimes called the "Remers rule" or the "Harvey- Madden rule." (Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667, 87 Cal.Rptr. 202, 470 P.2d 11; People v. Harvey (1958) 156 Cal.App.2d 516, 523-524, 319 P.2d 689; People v. Madden (1970) 2 Cal.3d 1017, 1021, 88 Cal.Rptr. 171, 471 P.2d 971.)

This court (Div. Two) staked out this rule in 1958 in People v. Harvey, supra, a case in which probable cause for an arrest asserted by an arresting officer was a communication he received from a superior officer who was deceased at the time of trial. "To permit the subordinate to justify the arrest on the superior's unsworn statement to the subordinate that the superior has obtained information from another justifying the arrest, however, would permit police officers to justify arrests by hearsay on hearsay, without requiring the sworn testimony of anybody that the information upon which the arrest was made was actually given to any police officer. To allow this would permit the manufacture of reasonable grounds for arrest within a police department by [such means] without establishing under oath that the information had in fact been given to any officer by the informer, or indeed that there was an informer at all." (Id., 156 Cal.App.2d at p. 523, 319 P.2d 689, conc. opn. of Dooling, J. and Draper, J., emphasis added.)

In 1970, the Supreme Court decided Remers v. Superior Court, supra, and People v. Madden, supra. Remers, involved a search initiated, inter alia, where the officers who had allegedly told the arresting officer about arrestee's narcotics sales, a basis on which the prosecution relied for probable cause to arrest, were never produced. Remers relied on Harvey as requiring negation of the "manufacture" of reasonable grounds for arrest within a police department by the officer who transmits information furnishing probable cause for arrest to the arresting officer by establishing how the information had in fact been obtained by the informing officer; i.e., to prevent " 'every utterance of a police officer [from] instantly and automatically acquir[ing] the dignity of official information ...,' " and...