Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD062243 Valeriano Saucedo, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J. and Gomes, J.
Following a contested jurisdiction hearing, the juvenile court found true an allegation that appellant, T.A., a minor, committed first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). Following the subsequent disposition hearing, the court continued appellant as a ward of the court, placed him in a long-term juvenile facility and declared his maximum period of physical confinement to be seven years two months, based on the instant offense and offenses adjudicated in previous wardship proceedings.
Prior to the jurisdiction hearing, appellant made, and the court denied, a motion to suppress evidence (Welf. & Inst. Code, § 700.1). On appeal, appellant’s sole contention is that the court erred in denying his suppression motion. We will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Motion to Suppress Evidence
In his moving papers, appellant asserted that “[t]here was no warrant or probable cause to support” his detention and arrest and therefore “all the evidence or items … obtained as a result of the illegal police activity must be suppressed.”
Evidence Adduced at Suppression Motion Hearing
City of Visalia Police Officer Cory Kuykendall testified he was on duty on April 19, 2009, when, at approximately 1:52 p.m., he received a dispatch call that a burglary was in progress “in the area of Campus and County Center” and that three persons, one of whom was a Black male wearing a white T-shirt, were “seen leaving the area on foot.” He arrived at the area at approximately 2:00 p.m. At some point thereafter, he received a call on his cell phone from another officer, who was “stationed... at the corner of County Center and Campus, ” and who stated that she had seen “[a] black male subject wearing a white T-shirt, ” “running across the street toward the 600 block of South County Center, ” moving in an easterly direction.
Except as otherwise indicated, our summary of evidence adduced at the hearing on the suppression motion is taken from Officer Kuykendall’s testimony.
Officer Kuykendall “responded to that location, ” where, at approximately 2:30 p.m., he saw a Black male, whom the officer identified in court as appellant, wearing a white T-shirt and “dark-colored or gray shorts, ” standing in the carport area of an apartment complex, smoking a cigarette. Appellant was “sweating profusely” and “breathing kind of hard.” Officer Kuykendall “contacted” appellant.
The distance between the location where the officer made contact with appellant and the “area … where [the officer was told] the burglary took place” was approximately two and one-half blocks.
Officer Jennifer Salmon testified to the following. She was “the first to arrive at the scene of the burglary, ” a residence located on West Valley (the residence). She got out of her car, approached on foot, and saw two persons in the front yard of the residence. They “exited the yard” and “took off fleeing.” The officer “continued to approach, ” at which point she saw a third person, whom she indicated in court was appellant; he was wearing a white T-shirt and gray shorts, and he was “going over the fence at the time....” He “cleared the fence, ” which was approximately six feet high, “peeked back over the fence, ” and “took off.” At that point-she “believe[d]” it was 2:26 p.m.-Officer Salmon broadcast over her police radio a “description” of appellant.
Officer Salmon was asked on cross-examination: “At some point, you’re taken to look at an individual, correct?” She answered, “Yes.”
Evidence Adduced at Jurisdiction Hearing
The parties stipulated that the evidence adduced at the hearing on the suppression motion would be considered introduced at the jurisdiction hearing. The parties also stipulated to the following: A.M., a minor, was at home when “[h]e heard … one of the suspects knock on the front door twice, and then he heard other individuals... removing a screen from the window, as well as trying to get into the window.” The minor’s father later discovered that two window screens were removed and there were pry marks on the window that were not there previously. “[N]obody had permission to remove the screen from his residence or attempt to gain entry into the window to his residence.”
Officer Salmon testified to the following: 30 to 40 minutes after she saw appellant running away from the residence where the burglary took place, she “ma[d]e contact” with appellant “at County Center just north of Campus.” She recalled that in her report she indicated she “[had] Officer Kuykendall detain [appellant] due to the fact that [appellant had]... a strong resemblance to the subject [she] saw.”
Officer Kuykendall testified that when he contacted appellant, appellant gave him a false name, viz., Terrell Jenkins.
City of Visalia Police Detective Robert Gonzales testified he spoke with appellant on April 19, 2009, at which time appellant stated he “was just walking in [the] area” of a friend’s house, looking for a bus stop. He did not recall “exactly where he was coming from.” When the detective told him there were “numerous” bus stops in the area, appellant “changed his story” and said he was looking for the main bus depot.
The detective “confronted [appellant] with the fact” that appellant had been at the residence of a friend named Regis. Appellant initially denied knowing anyone named Regis but, when he found out the detective had spoken to Regis’s mother, appellant said “he was there, but left.”
Photographs of the bottoms of the shoes appellant was wearing at the time of his arrest and photographs of shoe prints at the house where the burglary took place were admitted into evidence. We have viewed those photographs; the “zigzag” pattern on the bottom of the shoes is similar to the pattern of the shoe prints.
The juvenile court took judicial notice of the following facts: at the time of his arrest, appellant was on probation, he was “on runaway status, ” and a bench warrant had been issued.
DISCUSSION
Appellant contends the police did not have probable cause to arrest him and therefore all evidence discovered as a result of the illegal arrest should have been suppressed. (Wong Sun v. United States (1963) 371 U.S. 471, 484-488 [the Fourth Amendment’s exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures].)
“The federal Constitution’s Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. [Citation.]” (People v. Celis (2004) 33 Cal.4th 667, 673.) “When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.]” (Ibid.) Probable cause to arrest “exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (People v. Price (1991) 1 Cal.4th 324, 410 (Price).) Where a defendant has asserted that an arrest is constitutionally unreasonable because it was made without a warrant and was unsupported by probable cause, the People bear the burden of establishing probable cause to support the arrest. (People v. Williams (1999) 20 Cal.4th 119, 129-130.)
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) “‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power....’” (People v. James (1977) 19 Cal.3d 99, 107.) “In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (Glaser, supra, at p. 362.) Our review is limited to the evidence before the court when it heard the suppression motion. (People v. Garry (2007) 156 Cal.App.4th 1100, 1105, fn. 2; People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644, fn. 5.)
In the instant case, the evidence adduced at the suppression motion hearing was sufficient to establish that Officer Salmon broadcast a description of the third person she saw leaving the burglarized residence and, based on Officer Kuykendall’s testimony, that the description broadcast by Officer Salmon and received by Officer Kuykendall was of a Black male wearing a white T-shirt. In addition, the following is reasonably inferable from Officer Kuykendall’s testimony: appellant met the description provided; Officer Kuykendall encountered and arrested appellant within two and one-half blocks of the site of the burglary, at approximately 2:30 p.m., approximately one-half hour after a person meeting the description provided by Officer Salmon was seen leaving the scene of the burglary; and appellant was sweating profusely and breathing hard when Officer Kuykendall made contact with him. In our view, this evidence was not sufficient to establish probable cause to arrest appellant.
We find instructive People v. Mickelson (1963) 59 Cal.2d 448 (Mickelson) and People v. Curtis (1969) 70 Cal.2d 347 (Curtis). In Mickelson, a police officer received information that a robbery suspect was “fairly tall, ” White and wearing a red sweater. (Mickelson, supra, at p. 452.) Approximately 20 minutes after the officer had gone to the market where the robbery had “just been reported, ” shortly before 2:00 a.m., he arrested the defendant after seeing him driving a car approximately six blocks from the market, and observing that the defendant “appeared to be a large white man with dark hair wearing a red sweater or jacket.” (Id. at pp. 452, 453.) The court stated: “It was not unreasonable for the officer to stop [the defendant’s] car for investigation.... He did not have probable cause, however, to arrest [the defendant] for robbery. There could have been more than one tall white man with dark hair wearing a red sweater abroad at night in such a metropolitan area.” (Id. at p. 454.)
In Curtis, a police officer received a “report of a prowler” who was described as a Black male, approximately six feet tall and wearing a white shirt and tan trousers. (Curtis, supra, 70 Cal.2d at p. 350.) A short time later-the opinion does not specify how much time elapsed-the officer, while “cruising the neighborhood [where the prowler was seen], ” observed the defendant, “who matched the forgoing general description, walking along the street.” The officer “called to [the defendant] to stop, ” and “defendant complied.” (Ibid.) The officer told appellant he was under arrest, appellant resisted and he was eventually taken into custody by several officers.
The court held the police lacked probable cause to arrest the defendant: “The only information the officer possessed was a description of the suspect’s race, the color of his clothing, and the general area of the alleged burglary. No doubt he had sufficient grounds to detain and question defendant (People v. Mickelson (1963) 59 Cal.2d 448); but it is evident that he lacked probable cause to arrest him. As in Mickelson ‘There could have been more than one tall white man with dark hair wearing a red sweater abroad at night in such a metropolitan area’ (citation), so there could have been more than one Negro in a white shirt and tan trousers in the neighborhood on the night defendant was arrested. Defendant made no furtive or suspicious movements; he stopped on command and was cooperative until the officer attempted to detain him physically; he had a plausible explanation for his whereabouts, since he lived a block from where he was arrested. This is not ‘such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion’ that defendant was guilty of the crime.” (Curtis, supra, 70 Cal.2d at p. 358.)
Here, the physical description provided was even more general than in Mickelson and Curtis. It consisted of the suspect’s race and one very common article of clothing, a white T-shirt, and there was no showing that police encountered appellant at a place and time when it could be expected that pedestrian traffic would have been minimal. Indeed, appellant was arrested in the middle of the afternoon, near an apartment complex. There could have been more than one Black male wearing a white T-shirt at that time of day in the area where police made contact with appellant. Moreover, there was no evidence adduced at the suppression motion hearing that appellant was uncooperative or that his conduct upon being “contacted” by Officer Kuykendall was in any way suggestive of guilt. Nor does the evidence that appellant was sweating and breathing hard add appreciably to the People’s showing, particularly in light of the fact that he was observed in this state approximately one-half hour after Officer Salmon observed the suspect fleeing the scene of the burglary.
The People suggest, but stop short of actually arguing, that the evidence was sufficient to establish that Officer Salmon “identified appellant to Officer Kuykendall as the black male she saw climbing over the fence and running away.” The People acknowledge that “[t]he record does not specifically [so] indicate, ” but note that Officer Salmon “did testify that she was ‘taken to look at an individual’ which presumably referred to appellant when he was detained by Officer Kuykendall, ” and “[t]here is no indication in the record that appellant was not the person Officer Salmon saw running from the burglary scene.” (Italics added.) The People, as indicated above however, have the burden of proof of the issue of probable cause. Officer Salmon’s vague testimony that she was “‘taken to look at’” somebody is not sufficient to establish that Officer Salmon told Officer Kuykendall appellant was the third person she saw leaving the scene of the burglary.
The evidence may well have been sufficient to establish sufficient cause for a brief investigative detention. (See People v. Wells (2006) 38 Cal.4th 1078, 1089 [“[s]hort of outright arrest, police may temporarily detain a person on a lesser showing of cause”].) But on this record, as in Curtis and Mickelson, the prosecution did not establish that Officer Kuykendall was aware of facts which “would lead a person of ordinary care and prudence to entertain an honest and strong suspicion” that appellant was guilty of a crime. (Price, supra, 1 Cal.4th at p. 410.) Therefore, the court erred in denying appellant’s motion to suppress evidence discovered as a result of appellant’s arrest. We turn now to the question of whether this error requires reversal.
The admission of evidence obtained in violation of a person’s right to be free of unreasonable searches and seizures is reviewed for prejudice under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Ledesma (1987) 43 Cal.3d 171, 235.) Under that standard, error requires reversal unless the prosecution can establish the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 .) “An error in admitting plainly relevant evidence which possibly influenced the [trier of fact] adversely to a litigant cannot... be conceived of as harmless.” (Id. at pp. 23-24.)
We recognize that Officer Salmon’s jurisdiction hearing testimony identifying appellant as one of the persons she saw leaving the scene of the burglary was not the product of appellant’s arrest and therefore not subject to suppression. However, the probative value of this evidence with respect to the question of appellant’s guilt was undercut somewhat by the evidence that shortly after seeing the suspects leave the burglarized house, Officer Salmon told Officer Kuykendall only that appellant bore a “strong resemblance” to one of the suspects. Moreover, the following evidence obtained as a result of appellant’s arrest and admitted at the jurisdiction hearing contributed, in some degree, to the showing of guilt: (1) appellant gave a false name to Officer Kuykendall; (2) some of his other postarrest statements could be interpreted as contradictory and/or evasive; and (3) the pattern on the soles of the shoes he was wearing at the time of his arrest was similar to shoe prints found at the scene of the burglary. On this record we cannot say beyond a reasonable doubt that the violation of appellant’s Fourth Amendment rights was harmless beyond a reasonable doubt. Therefore, reversal is required.
DISPOSITION
The judgment is reversed. The case is remanded to the juvenile court with directions that the court vacate its order denying the motion to suppress, enter a new order granting the motion to suppress, and undertake any other necessary proceedings in accordance with applicable law.