People v. Lazanis, B036678

• Decision Date: 29 March 1989
• Docket Number: No. B036678,B036678
• Citation: 209 Cal.App.3d 49,257 Cal.Rptr. 180
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Eugene LAZANIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 180

257 Cal.Rptr. 180

209 Cal.App.3d 49

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Eugene LAZANIS, Defendant and Appellant.

No. B036678.

Court of Appeal, Second District, Division 7, California.

March 29, 1989.

Review Denied June 29, 1989.

Robert B. LeCorvec, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., and Robert M. Myers, City Atty. Gen. of Santa Monica, for plaintiff and respondent.

Cesar A. Bertaud, Deputy City Atty., Santa Monica, for People.

KOLTS, Associate Justice. ^*

This case has been presented to us after conviction of the defendant for driving a motor vehicle while under the influence of alcohol. The conviction was affirmed by the Appellate Division of the Superior Court, and, because of perceived significant questions of law was certified to this court for consideration.

FACTS AND PROCEEDINGS BELOW

In the early morning hours of February 4, 1986, the Santa Monica Police Department received a telephone call from Mr. Greenbank, a private citizen, relaying information from another person that there was a possible burglary in progress at the Bay City Van and Storage at an address on Second Street in Santa Monica. This information was transmitted in a radio broadcast by a Ms. Kujuo which was received by Officers Howe and Brown among others who proceeded toward the location. Officer Howe was the first to arrive there. She observed the situation and transmitted the following radio message: "A vehicle pulling out of there. Small white. Looks like a Toyota. Male black. Male white. Male black. Stand by. Location at the driveway. Vehicle southbound."

Officer Linda Brown, the only witness at trial, heard Howe's transmission, and within moments thereafter observed the defendant's car going southbound on Second Street. When the car was stopped, defendant was at the wheel. The defendant emerged from the car, staggering slightly. He smelled of alcohol, and after failing to satisfactorily perform sobriety field tests, was cited for operating the vehicle while under the influence of alcohol.

The People offered a document which was certified as a true copy of an original police department document which noted the receipt of a telephone call by time stamp at 3:41 a.m. which bore the words "Possible 459 into business now." Penal Code Section 459 deals with the elements of the offense of burglary. This document was received into evidence pursuant to section 1280 of the Evidence Code over objection.

It was also stipulated that Mr. Greenbank, the caller, phoned from the Carmel Hotel located at 201 Broadway in Santa Monica after receiving information from an unknown informant.

DISCUSSION

The issue which we are called upon to determine is whether the Harvey -Madden rule relative to arrests applies to the detention which occurred in this case.

People v. Harvey (1958) 156 Cal.App.2d 516, 319 P.2d 689, arose out of a conviction for the possession of marijuana. Police officers, acting upon information supplied to them by another officer that the defendant was trafficking in drugs, conducted a surveillance of his activities. After watching him for a period of time, they placed him under arrest and recovered the contraband. The reviewing court found that the arrest was made solely in reliance on the information and briefing from the other officer. This was held to be an inadequate basis for an arrest, and invalidated the subsequent recovery of the narcotics.

People v. Madden (1970) 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971, dealt with similar facts. A police officer received information from two other officers that the defendant was engaged in the sale of narcotics. The arresting officer went to defendant's home, had a discussion with the defendant at the threshold, entered the home and conducted the search. The trial court ruled that the defendant had not consented to the search, but that the officer had probable cause to enter the premises and conduct his search. The Supreme Court reversed, stating at page 1021, 88 Cal.Rptr. 171, 471 P.2d 971, "... [A]lthough an officer may make an arrest based on information received through 'official channels,' the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony. We reaffirmed this principle in the recent case of Remers v. Superior Court, ante [ (1970) 2 Cal.3d] pp. 659, 666-667 [87 Cal.Rptr. 202, 470 P.2d 11], where we pointed out: 'It is well settled 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." ' "

The distinction between the facts in these two cases and those in the case at hand are immediately apparent. In Harvey and Madden, the information given to the arresting officer was relayed to him hours or days in advance. Here, the information was forwarded in the nature of an emergency communication, a mere minute or two before the actual stop. Further, we are dealing with a detention which gave rise to an opportunity to observe, without a search. The appearance of defendant resulted in an arrest for driving under the influence. This is in fact a case in which the stop, detention and subsequent arrest is supported by probable cause.

The more recent decision of In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957, after noting at page 892, 148 Cal.Rptr. 366, 582 P.2d 957 that, "It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.", continued, "The guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution [citations], is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citation.] Because of the limited scope of that invasion in the present context, it need not be supported by the actual belief in guilt required to arrest, book, and jail an individual on a named criminal charge."

The critical language appears at page 893, "Balancing these factors, the courts have concluded that in 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. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question."

Let us look to the evidence that we have before us. The arresting officer, Linda Brown was aware of a police broadcast of "a possible burglary in progress" at an address on Second Street in Santa Monica. Within moments of this broadcast a second call was received, this time from Officer Howe that a vehicle was pulling out from this location, "A vehicle pulling out of there. Small vehicle. Looks like a Toyota. Male black. Male white. Male black. Stand by. Location at the driveway. Vehicle southbound." Applying the twin tests of Tony C., Officer Brown was justified in stopping defendant's automobile: there was immediacy in the time frame; the color of the small car corresponded to the color of the observed car; the car was a compact (although it was a Mazda and not a Toyota); the vehicle contained several individuals and, finally, was proceeding in a direction away from the location of the business in question.

Officer Brown was entitled to detain the defendant for further investigation. The observations which came thereafter such as the defendant's staggering gait and alcoholic breath supplied an ample basis for the tests which resulted in a citation for driving while under the influence of alcohol.

Appellant has cited Ojeda v. Superior Court (1970) 12 Cal.App.3d 909, 91 Cal.Rptr. 145, as supporting his position that Officer Brown's stop and observations were inappropriate. In Ojeda, a highway patrol officer received a radio communication to be on the lookout for a station wagon of a description similar to that which was ultimately stopped. The occupants of the car had purportedly participated in a robbery (a statement which was in error). The defendant was stopped, arrested and later searched on the basis of this information. The appellate court found this procedure to be improper as information which was offered as probable cause for the broadcast and subsequent arrest was without proof of the nature and origin of the report and therefore insufficient to supply probable cause for the officer's conduct. Further, the evidence which was offered to the trial court came as the result of a search after arrest, and not as the result of mere observation on the part of the citing officer. At page 918, 91 Cal.Rptr. 145, the court notes, "If someone cries out 'stop thief', an officer is not required to investigate to determine whether the cry in fact came from the victim or a perceptive witness, ... before stopping the apparent fleeing perpetrator."

Restani v. Superior Court (1970) 13 Cal.App.3d 189, 91 Cal.Rptr. 429 is a case in which a certain vehicle was suspected of involvement in a homicide. The arresting officer received a radio call that there was an all points bulletin...