Opinion
A120299.
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WILLIAM BATOK, Defendant and Appellant.
Not to be Published in Official Reports
Robert William Batok (appellant) appeals from a judgment entered after the trial court denied his motion to suppress evidence and he entered a no contest plea. He contends the court erred in denying his motion to suppress because the arresting officer performed an illegal weapons search. We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed March 23, 2007, charged appellant with possession of marijuana for sale (Health & Saf. Code, § 11359, count one), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140.) The information also alleged appellant had suffered two prior strikes (Pen. Code, § 1170.12) and had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).
Appellant filed a motion to suppress evidence (Pen. Code, § 1538.5). At the hearing on the motion, Contra Costa County Deputy Sheriff Michael Tegeler testified that at about 8 a.m. on Friday, December 1, 2006, he was dispatched to an area in the city of Martinez where trailer parks are located. The dispatcher told Tegeler that an anonymous citizen had called in about a suspicious man who was possibly "casing the area," i.e., "looking to burglarize some of the trailers in the area or break into vehicles." The caller described the suspicious man as "a white male, wearing a baseball cap and a denim coat and boots." According to the dispatch report, the caller described the man as being about five feet seven inches tall and "not wearing proper clothing." The caller was also "concerned about [the mans] health."
Tegeler arrived in the area approximately five minutes after receiving the dispatch call and saw "an older pickup truck" legally parked on the side of the road. The passengers side door was open and the drivers side window was rolled down. A man, later identified as appellant, was "laying partially across the front [bench] seat with his feet hanging out the passenger door." Appellant "had a guitar in his hand" and was wearing a baseball cap, work boots and a jacket. Tegeler said he "really couldnt tell" how tall appellant was but he "figured he was probably [five feet ten inches tall]." There were no other people around.
The truck was "filled with stuff," including magazines, newspapers and household items. Tegeler "wasnt sure if [appellant] was asleep of having some kind of a medical condition," but said he "wouldnt feel right driving past somebody and then finding out . . . he had a medical condition." When asked whether he believed the man matched the description given by the dispatcher, Tegeler responded, "Well, . . . just seeing somebody slumped over in a car like that, whether they match a description or not, Im going to investigate anyways." He also testified: "Just seeing somebody in that state in a vehicle[] seemed suspicious, whether they were asleep [or] having a medical condition . . . [¶] I patrol that area . . . [W]e do have a lot of thefts at the trailer park. So thats going to draw my attention to him anyways, whether hes asleep, faking to be asleep, having a medical condition. Either way, I felt I needed to check that out." Before contacting appellant, Tegeler "r[a]n the plate on the truck" and learned it was registered to a Robert Batok.
Tegeler decided to contact appellant, but before waking him up, he "stuck [his] head in" the open drivers side window to make sure there were no weapons in the truck. He explained he did so for officer safety reasons: "I figured the subject was in there either asleep or [in] medical distress. To me, it was worth taking the couple of seconds to make sure that he didnt have access to a knife, a gun, or anything like that before I went to wake him up or to see exactly if he needed medical attention. [¶] I didnt want to wake him up and then — quickly wake him up, like, he grabs a gun and turns at me." He testified he had worked as a peace officer for 16 years and had contacted individuals in vehicles "thousands" of times. He knew weapons can be hidden inside a vehicle and are not "immediately apparent" to him as he stands outside the vehicle. Tegeler "scan[ned]" the inside of the truck for "20, 30 seconds, tops." As he looked inside, he saw hypodermic syringes and a baggie of white crystal material that looked like methamphetamine.
Tegeler then opened the drivers seat door, which was unlocked, and "nudged [appellant] to see if he was asleep, see if he needed medical attention, anything like that." Another officer who had arrived at the scene conducted a cursory search of appellant and sat him down on the curb. Tegeler searched the truck and found 30 syringes in a shaving kit and a plastic grocery bag with several more syringes and 19 bags of what appeared to be marijuana. Tegeler arrested appellant and while searching appellant found $408 in cash and a leather pouch around appellants neck that had another baggie of what appeared to be methamphetamine.
The trial court denied appellants motion to suppress evidence, finding Tegeler acted reasonably under the circumstances and that the weapons search was legal. On November 5, 2007, appellant entered a negotiated plea in which he pleaded no contest to one count of possession of marijuana for sale. The remaining counts and enhancements were dismissed on motion of the prosecutor and the court sentenced appellant to the lower term of 16 months in accordance with the plea bargain. Because appellant had 16 months of custody credits, the sentence was a "paper commitment" in which he was immediately paroled.
DISCUSSION
Appellant contends that Tegelers act of "st[icking] [his] head" inside the window constituted an illegal search because information received from a "vague" and "uncorroborated" call about a man "casing the area" was insufficient to justify a weapons search. We reject the contention.
The Attorney General does not dispute that Tegelers act of "st[i]ck[ing] [his] head" inside the window to see if there were any weapons constituted a warrantless search.
Penal Code section 1538.5, subdivision (a)(1), provides in part: "A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable." "The clear implication of the subsection is that the evidence need not be suppressed, if the seizure was reasonable. To state the implication positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists." (People v. Curley (1970) 12 Cal.App.3d 732, 746.)
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citation.]" (People v. Miranda (1993) 17 Cal.App.4th 917, 922; see also People v. Ingram (1993) 16 Cal.App.4th 1745, 1750.) "`There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. [Citations.]" (People v. Berutko (1969) 71 Cal.2d 84, 93.) In determining reasonableness, "a court is ill-advised to apply hard and fast rules. Rather we must be concerned, in a case-by-case analysis, with whether the extent of the search exceeded the attainment of the objectives which justified its inception. [Citation.]" (Miller v. Superior Court (1981) 127 Cal.App.3d 494, 506.)
The totality of the facts and circumstances in this case show it was reasonable and lawful for Tegeler to "scan" the inside of the truck for weapons for officer safety reasons. "In making Fourth Amendment reasonableness assessments, courts have regularly considered the safety risks confronting investigating officers." (People v. Wilson (1997) 59 Cal.App.4th 1053, 1060; see also, e.g., Maryland v. Wilson (1997) 519 U.S. 408, 410 [for officer safety, officer making traffic stop may order passengers out of car]; Maryland v. Buie (1990) 494 U.S. 325, 327 [officers serving arrest warrant may conduct limited protective sweep for hidden persons inside residence]; Michigan v. Summers (1981) 452 U.S. 692, 702 [interest in minimizing risk of harm to officers significant factor in Fourth Amendment analysis]; Terry v. Ohio (1968) 392 U.S. 1, 24 [officer may conduct a patdown search for weapons if there are reasonable grounds to believe the suspect is "armed and presently dangerous"]; Michigan v. Long (1983) 463 U.S. 1032, 1049-1050 [applying the same standard to a search of the passenger compartment and other parts of a vehicle in which weapons may be hidden].) These decisions make clear that "`it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. [Citation.]" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.)
When Tegeler arrived in the area to which he had been dispatched, he came across a suspicious situation in which appellant was lying partially across the bench seat of a truck with his legs "hanging out" of an open passenger door. The drivers side window was rolled down and Tegeler could not tell whether appellant was sleeping, pretending to be asleep, or having a medical condition. Appellants physical appearance matched the dispatchers description, and the fact that there was no one else in the area, and that appellant was "passed out" in a truck after the caller had said she was "concerned about [the mans] health," suggested appellant was the man the caller had described to the dispatcher. Thus, although Tegeler testified he did not see anything that suggested appellant might be armed, he did know from the dispatch call that appellant was a potential burglary suspect.
As a burglary suspect, appellant was likely to be in possession of weapons or items that could be used as weapons. As People v. Myles (1975) 50 Cal.App.3d 423, 430 (Myles), held: "Suspecting that appellant might possibly be a burglar, [the police officer] acted reasonably and properly in conducting a pat-down search for his own protection. It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a pat-down search is necessary for the officers safety." (See also People v. Smith (1973) 30 Cal.App.3d 277, 279-280 [proper for officer to conduct pat-down search of suspects of a burglary, which is a "serious offense"]; in People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230 ["the minimal intrusion of a patdown" was proper because "a reasonably prudent person would fear a possible burglar and burglary suspects frequently carry weapons"].) As a 16-year veteran police officer, Tegeler had contacted people in their vehicles thousands of times and was aware that weapons could easily be hidden inside vehicles. Moreover, this particular vehicle was "filled with stuff," and a guitar covered part of appellants body, making it difficult for Tegeler to see if there were any weapons. Under the circumstances, there were reasonable grounds to believe that appellant was "armed and presently dangerous," (see Terry v. Ohio, supra, 392 U.S. at p. 24; see also Michigan v. Long, supra, 463 U.S. at pp. 1049-1050), and Tegeler acted reasonably in "taking the couple of seconds to make sure that [appellant] didnt have access to a knife, a gun, or anything like that . . . ."
We note that the pat-down search in Myles was particularly reasonable because several burglaries had occurred in the area and weapons had been used in some of them. (Myles, supra, 50 Cal.App.3d at p. 430.) These additional facts, however, were not the bases of the courts conclusion that burglary suspects, as a general rule, pose a threat to investigating officers.
We also note that the search was very limited in scope. In determining whether a search was reasonable, "our inquiry is a dual one—whether the officers action was justified at its inception, and whether it was reasonably related in scope to the circumstances [that] justified the interference in the first place." (Terry v. Ohio, supra, 392 U.S. at pp. 19-20.) Here, in contrast to Terry v. Ohio, supra, 392 U.S. at page 29, in which the officer conducted a patdown search of the suspect, or Michigan v. Long, supra, 463 U.S. at page 1035, in which the officer searched the passenger compartment of a car, Tegeler merely "stuck [his] head" inside an open window and "scan[ned]" the inside for "20, 30 seconds, tops." He did not reach inside the truck, open any compartments, or touch or move any items inside the truck. He did not open the door and did not touch appellant. Thus, the privacy concerns implicated by his actions were minimal and were carefully circumscribed to meet the exigency that justified its actions: to attempt to dispel or confirm the presence of weapons in the truck. (See People v. Wilson, supra, 59 Cal.App.4th at p. 1059 [in finding officers conduct reasonable, the court emphasized the limited nature of the intrusion when a police officer "only took a single step" into the premises]; see also Illinois v. McArthur (2001) 531 U.S. 326, 331 [relevant factors in evaluating reasonableness of warrantless search include facts that officer "avoid[ed] significant intrusion into the home" and that search was "limited in time and scope"].)
Moreover, essential to the determination of reasonableness is a consideration of the degree of privacy a defendant may reasonably expect in a given enclosure occupied by him. (Katz v. United States (1967) 389 U.S. 347, 351; People v. Willard (1965) 238 Cal.App.2d 292, 307.) For example, individuals ordinarily possess the highest expectation of privacy within their homes, an area typically "afforded the most stringent Fourth Amendment protection." (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 561.) In contrast, drivers and passengers of vehicles "possess a reduced expectation of privacy with regard to the property they transport in cars." (Wyoming v. Houghton (1999) 526 U.S. 295, 296.) Here, appellant was lying against the bench seat of a truck that was parked on a public street, and the passenger door was open and the drivers side window was rolled down. The search was reasonable for the additional reason that appellant did not have a high expectation of privacy with regard to the items in the truck.
Appellant contends that Tegelers act of "scan[ning]" the inside of the truck was nevertheless illegal because Tegeler was relying on "vague" and "uncorroborated" information received from an anonymous caller that a man was possibly "casing" the area. Under the Harvey-Madden rule, when law enforcement officers rely solely on information obtained from another police officer as the basis for a search or arrest, the prosecutor must establish the basis or reliability of the other officers information. (Remers v. Superior Court (1970) 2 Cal.3d 659, 667 (Remers).) A dispatch call that "cannot be traced back to its source amounts to nothing more than an anonymous tip," and thus, "the information contained in such a [dispatch] can support a detention only where that information is `sufficiently corroborated to furnish the requisite reasonable suspicion. [Citation.]" (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1644 [police radio broadcast was too general and did not support the detention of a black minor where "[t]he individuals allegedly involved in the `possible criminal activity were not described other than by race and only a general `area was given as their location"].) "To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer." (Id. at pp. 666-667.) "The whole point of the Remers rule is to negate the possibility that the facts which validate the conduct of the officers in the field are made up by somebody inside the police department who is trying to frame a person whom he wants investigated." (People v. Orozco (1981) 114 Cal.App.3d 435, 444 (Orozco).)
People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.
"[T]he dispatcher . . . need not testify if other evidence is presented circumstantially proving that the police did not make up the information." (People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 (Johnson).) Thus, in Orozco, supra, 114 Cal.App.3d at page 444, where an anonymous caller reported that people were shooting out of a car, "the [P]eople never proved that such a call was made but they did prove that there were cartridges within four to five feet of the passenger door to the car when the police looked for them." (Ibid.) The court rejected the defendants Harvey-Madden challenge to the detention and subsequent search on the ground that "[t]he presence of the cartridges certainly supports a very strong inference that the police did not make up the information from the informant." (Id. at pp. 444-445.) And in Johnson, although the People did not offer testimony from the police dispatcher who had informed officers in the field of a possible burglary in progress, the court held police had probable cause to detain and arrest the defendants because "[t]he officers observations corroborated the broadcast information in that (1) the defendants were Black males of approximately the same age of and dressed nearly identically to the suspects described in the radio broadcast; and (2) they were observed standing in the park, 10 yards from the rear fence of the burglarized home . . . and in the immediate vicinity of the area where the officers were directed by the dispatcher." (Johnson, supra, 189 Cal.App.3d at p. 1320.)
The Harvey-Madden rule was not violated in this case. Appellant asserts the dispatch was vague because the term "possibly casing the area" did not adequately describe what the suspect was doing. He states "it [wa]s not even clear whether `casing was the callers term or the police dispatchers." The word "casing," however, is a commonly used term, and Tegeler understood it properly to mean that the suspect was possibly looking to commit a burglary or theft.
The dispatch also included other pieces of information that gave it sufficient indicia of reliability. When Tegeler arrived at the scene, he saw appellant, who matched the physical description provided by the anonymous caller. Appellant contends there could have been numerous other people who looked like him, but the fact that the description "may have included a disproportionate number of persons within the community does not vitiate the reasonableness of the stop. If such commonality were to invariably impair a detention, only those with unique physical characteristics could be stopped. Obviously, such a rule makes little sense." (People v. McCluskey (1981) 125 Cal.App.3d 220, 227.) In any event, Tegeler testified that he arrived in the area shortly after receiving the call and that there were no other people around in the area. He also testified that he was "very familiar" with the area and had previously never seen anyone there matching the callers exact description.
Relying on Florida v. J.L. (2000) 529 U.S. 266 (Florida ), appellant argues "[t]he accuracy of the callers description of the suspect and his location were not enough, because those observations did not provide the necessary assurance of `reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases." (Italics added.) In Florida, officers responded to an anonymous call that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. (Id. at p. 268.) When the officers arrived at the bus stop, they saw three black males, including J.L., "just hanging out." (Ibid.) Although the officers did not observe any suspicious activity, one of them approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from his pocket. (Ibid.) Florida concluded the gun should have been suppressed because an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of that person. (Ibid.)
Although Florida noted that "[t]he reasonable suspicion here at issue [where the criminal activity was possession of a firearm] require[d] that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person," (529 U.S. at p. 272, italics added), it held more generally that anonymous tips "can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability" that would allow an officer to "test the informants knowledge or credibility" (id. at pp. 269, 272). Florida did not hold, as appellant suggests, that all detentions or searches that are based on anonymous tips require corroboration of illegal activity. If an officer were required to observe illegal activity in order to have reasonable suspicion to detain or search a subject, reasonable suspicion could never be based on information obtained from an informant. That is clearly not the law. (See Illinois v. Gates (1982) 462 U.S. 213, 242 ["even in making a warrantless arrest an officer `may rely upon information received through an informant, rather than upon his direct observations, so long as the informants statement is reasonably corroborated by other matters within the officers knowledge "].)
Moreover, here, in contrast to Florida, the suspects description and location were not the only portions of the dispatch that were corroborated. Although Tegeler did not see appellant "casing the area" and instead found appellant lying in a truck, the caller also told the dispatcher that she was "concerned about [the mans] health," which suggests she observed him acting in a way that led her to believe he had a medical condition. That description matched the way in which appellant was found, i.e., "passed out," lying partially against the bench seat of a truck with his feet "hanging out" of an open passenger door. Because significant aspects of the dispatch were verified, "it is reasonable to conclude that the source of the information `[wa]s probably right about other facts . . . including the claim that the object of the tip [wa]s engaged in criminal activity. [Citation.]" (In re Eskiel S., supra, 15 Cal.App.4th at p. 1644.)
Appellant contends the search also improper under the community caretaker exception to a warrantless search, which allows an officer to conduct a search to protect the safety and security or persons and property in circumstances short of a perceived emergency. (See, e.g., People v. Ray (1999) 21 Cal.4th 464, 468, 473 (lead opn.).) In light of our conclusion that the search was proper on officer safety grounds, we need not, and will not, address this contention.
DISPOSITION
The judgment is affirmed.
We concur:
Pollak, J.
Jenkins, J.