People v. Rivera

• Decision Date: 11 August 1992
• Docket Number: No. A055219,A055219
• Citation: 8 Cal.App.4th 1000,10 Cal.Rptr.2d 785
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Earl RIVERA, Defendant and Appellant.

Page 785

10 Cal.Rptr.2d 785

8 Cal.App.4th 1000

The PEOPLE, Plaintiff and Respondent, v. James Earl RIVERA, Defendant and Appellant.

No. A055219.

Court of Appeal, First District, Division 4, California.

Aug. 11, 1992.

Review Denied Nov. 12, 1992.

Victor Blumenkrantz, Berkeley, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Defendant James Earl Rivera (appellant) appeals his convictions for auto theft (Veh.Code, § 10851, subd. (a)) and attempted burglary (PEN.CODE, §§ 459/664)¹. He claims that certain evidence supporting his arrest should have been suppressed pursuant to section 1538.5, since his arrest was accomplished without probable cause and by a police dog. He further claims that the court's admission of this evidence requires reversal of his convictions under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We disagree and affirm.

I. FACTS

On May 21, 1991, Oakland police received information "that a James Rivera was going to hit an A.T.M. on Hegenberger Road at approximately 4:00 o'clock in the morning," and that he would be armed.

Several Oakland police officers therefore began surveillance of automatic teller machines (ATM) located along Hegenberger Road during the early morning hours of May 22, 1991. One of the locations they monitored was the ATM at the City and County Employees Credit Union, located near the intersection of Hegenberger and Edgewater Roads. About 4:07 a.m., police observed two Black males arrive in a stolen Ford Mustang convertible. One of the suspects, wearing dark clothes, remained by the car as a lookout, while the other, who was wearing light clothes, walked over to the ATM and started hitting it with a crowbar.

Officer Conner radioed the other surveillance units that the two suspects were forcing entry to the ATM. It was the first of many radio transmissions detailing the suspects whereabouts during the course of the police pursuit. The two suspects jumped into the car, with the light-clothed one at the wheel. He backed the car out of the parking lot and headed south. Officers Grubensky and Pourier, in a police stakeout vehicle, saw the Mustang heading south, and saw it crash into a hedge. Officer Grubensky saw the two men climb over the windshield and run across the hood of the car. He described the driver, whom he later identified as appellant, as being of medium build, about 5 feet 7 inches to 5 feet 8 inches tall, weighing 140 to 150 pounds and wearing light colored shorts. The two men ran across a street and climbed over a fence. Officer Grubensky pursued, and saw them trudging through the water of an estuary. He observed them come out of the water, walk up an embankment, and climb over a fence into a nearby United Parcel Service (UPS) parking lot. Officer Grubensky communicated this information on the police radio.

In addition to 10 surveillance units already in the area, at least 10 additional police patrol cars were brought in. These cars, with their lights flashing, formed a perimeter. In setting up the perimeter, police officers repeated on the radio that the suspects were armed.

Officers Vierra and Hardman were also in the vicinity. Officer Vierra saw two Black males walking and then running near the UPS lot. He lost sight of the men, but broadcasted the direction in which they were running to other police units. Officer Hardman ran to a Pitney Bowes parking lot adjacent to the UPS parking lot and concealed himself behind a post. Hardman soon saw the men run in his direction and climb a fence into the Pitney Bowes yard. One, whom he ultimately identified as appellant, was wearing light-colored shorts and the other was wearing dark pants. Hardman broadcasted the suspects' description and location on the radio. He ran toward the men, and came within 20 to 25 feet of them. He noticed that appellant was not wearing a shirt and was very dark complected. Hardman yelled, "Police. Freeze," and ordered the men to the ground. The men ran, and Hardman pursued. When the suspects went over another fence, Hardman was about 10 feet from them. He noticed that appellant was wearing black topsider deck shoes, and wore his hair in cornrows or braids.

The suspects then split up: the man in dark pants climbed a fence into a post office parking lot, where he was apprehended. Appellant crossed a field heading toward the parking lot of the Hilton Hotel.

Officer Garrahan and his police dog, Gitan, had been dispatched to the burglary area and assigned to a perimeter post. Since 4:15 a.m., Officer Garrahan had been listening to radio updates about the suspects' whereabouts. At 4:45 a.m., Officer Garrahan was requested to conduct a search with Gitan of an area of shrubs and trees along the south edge of the Hilton Hotel property, the area to which appellant was last spotted running. Police had already searched the area; Officer Garrahan did not see anyone in the vicinity. Officer Garrahan had been informed by radio that the suspect he was searching for was a Black male, about 25 years old, wearing white shorts and no shirt and that he was armed with a .9-millimeter handgun. Because he believed the suspect was armed, Officer Garrahan wanted to have the element of surprise on his side. He therefore released Gitan without issuing a "canine announcement," ² which would have warned those present of the imminent threat the dog presented. Officer Garrahan gave the dog the command "Such Fass" (search and bite).

Gitan followed his orders. He quickly picked up a scent and went into the bushes. Soon Officer Garrahan heard someone yelling, and he called out, "Get your hands up. Get your hands up." Officer Garrahan saw Gitan attempting to pull appellant out of the bushes. The dog had bitten and locked his jaws across the top of appellant's scalp. Officer Garrahan could only see appellant's right hand and still feared he was armed. He therefore called out, "Get your hands up where I can see them.... I can't call the dog off until I can see your hands."

When the dog pulled appellant further out, Officer Garrahan could see that appellant was unarmed, and he called off the dog. Gitan had bitten and held onto appellant for approximately 15 seconds. Officer Garrahan noticed that appellant matched the description of the burglary suspect: He was the right age, wearing pale shorts and no shirt, and was apprehended in an area consistent with the burglar's direction of flight; accordingly, he arrested and handcuffed appellant. Appellant was subsequently identified by Officers Grubensky and Hardman shortly thereafter.

II. DISCUSSION

On appeal appellant claims that the trial court erroneously denied his motion to suppress evidence (i.e., the police identifications and his clothes), which was obtained as a result of his arrest. He asserts that this evidence was obtained wrongfully, since he was arrested without probable cause. Since the prosecution relied heavily on this evidence, he claims reversal is required under Chapman.

Appellant has two main contentions we must address: First, he contends that he was arrested at the time he was bitten on the head by Gitan and thereby was prevented from moving by Gitan. Second, he contends that this "arrest" was made without probable cause. That Gitan himself lacked probable cause does not determine the issue; both sides agree that he should be considered an instrumentality of Officer Garrahan. Appellant claims Officer Garrahan lacked probable cause, since the facts known to him at the time of the arrest were not sufficiently "person-specific."

"An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles." (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.) On appeal the factual findings of the lower courts are upheld if supported by substantial evidence. (People v. Siripongs (1988) 45 Cal.3d 548, 567, 247 Cal.Rptr. 729, 754 P.2d 1306.) However, appellate deference is not accorded to the selection of the relevant legal principle or its application to the facts as found. Both steps present questions of law which are scrutinized under the standard of independent review. (People v. Williams, supra, 45 Cal.3d at p. 1301, 248 Cal.Rptr. 834, 756 P.2d 221.) Independent review is appropriate because it is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

We, therefore, independently review the trial court's acceptance of appellant's first contention (that he was arrested at the time he was bitten by Gitan), and rejection of his second (that the arrest was made without probable cause). We find both contentions lacking, and uphold the trial court's ruling.

A. Appellant Was Detained, and Not Arrested, by Gitan

California cases have long recognized that "circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning." (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) To protect his safety, the officer may also be justified in requesting a suspect to submit to a superficial search for concealed weapons. (Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.) The guiding principle in these temporary investigatory stops, as in all Fourth Amendment issues, is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." (Id. at p. 19, 88 S.Ct. at p. 1878-1879.)

Determining the reasonableness of a...