Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. INF055575, H. Morgan Dougherty, Judge.
ORIGINAL PROCEEDING: Petition for writ of habeas corpus. H. Morgan Dougherty, Judge. Petition Denied.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following the trial court’s denial of defendant’s motion to suppress evidence (Pen. Code, § 1538.5) at the preliminary hearing, and pursuant to a negotiated plea agreement, defendant pleaded guilty to possession of metal knuckles (§ 12020, subd. (a)(1)). In exchange, defendant was placed on formal probation for three years on various terms and conditions.
All future statutory references are to the Penal Code unless otherwise stated.
In his appeal, defendant contends (1) the court erred in denying his motion to suppress evidence, as the initial detention and search of defendant was unlawful; and (2) the suppression motion should be reviewed on the merits, as any failure of trial counsel to renew the suppression motion prior to entering a guilty plea constituted ineffective assistance of counsel. Because defendant failed to renew his suppression motion before the superior court to preserve the issue for appeal, we find the issue has been waived.
The claim of ineffective assistance is also raised in defendant’s petition for writ of habeas corpus and will be discussed in relation to that petition.
In his petition for writ of habeas corpus, defendant claims his counsel was ineffective for failing to preserve his right to appeal the suppression motion. We reject this contention and deny defendant’s petition, because defendant cannot show his counsel was ineffective for not renewing his suppression motion in the superior court.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript.
On the night of August 31, 2006, between 10:00 p.m. and 11:00 p.m., Desert Hot Springs Police Officer Matthew Drew and another officer responded to a dispatch call advising them of a disturbance at the Firehouse Tavern, a local sports bar, on Palm Drive. The area was known as a high-crime area. Dispatch also advised the officers of the description of the suspect and that he “possibly had a weapon.” The officers were advised that the suspect was a Hispanic male, wearing shorts and a shirt. Dispatch was uncertain of the type of weapon the suspect had.
Officer Drew and his partner responded to dispatch’s call within one to one and a half minutes. Upon arrival, Officer Drew observed two male subjects arguing in the middle of the street in front of the Firehouse Tavern. One of the men matched the description of the suspect provided by dispatch.
Officer Drew approached defendant and spoke with him. Based on the circumstances of the call, that defendant fit the description given, and that he possibly had a weapon, Officer Drew detained defendant and told him to place his hands above his head and to spread his legs. Defendant was then patted down for weapons. While conducting the patdown, Officer Drew felt an unknown hard object in defendant’s front pocket. Based on his training and experience, Officer Drew believed the object might be a gun. Officer Drew reached into defendant’s pocket and retrieved the object, which he recognized as a pair of brass knuckles. The brass knuckles were described as a series of rings that are connected together through which four fingers can be placed. The officer thought they were“[k]ind of circular.” Defendant was handcuffed and arrested.
On September 5, 2006, the Riverside County District Attorney’s office filed a complaint against defendant alleging that he had unlawfully possessed metal/brass knuckles. (§ 12020, subd. (a)(1).)
On October 2, 2006, defendant filed a motion to suppress evidence pursuant to section 1538.5.
On October 18, 2006, the preliminary hearing and the hearing on the suppression motion were heard together. Following testimony from Officer Drew and argument from counsel, the court denied defendant’s motion to suppress evidence, and defendant was held to answer in the superior court.
Though not elicited during Officer Drew’s testimony, the parties were under the impression that the initial call made to the police dispatcher was from an anonymous caller or some unknown person.
On November 14, 2006, an information was filed charging defendant was one count of unlawful possession of metal knuckles in violation of section 12020, subdivision (a)(1). Defendant was arraigned the following day. He was represented by a different deputy public defender (Deputy Public Defender (DPD) Kenneth Gregory) than he had been when his suppression motion was heard and denied.
On January 5, 2007, defendant, again represented by DPD Gregory, withdrew his plea of not guilty and pleaded guilty to possession of metal knuckles. Defendant was subsequently sentenced to three years’ probation.
On January 11, 2007, defendant filed his notice of appeal based on the denial of his suppression motion.
On June 8, 2007, appellate counsel filed defendant’s opening brief, claiming the trial court erred in denying the suppression motion and that DPD Gregory was ineffective for failing to renew the suppression motion.
On August 3, 2007, the People filed their response, arguing defendant’s appeal must be dismissed because defendant waived the issue by failing to renew his suppression motion in the superior court and that defendant had failed to establish that his trial counsel was ineffective for failing to renew the suppression motion.
On September 13, 2007, appellate counsel filed defendant’s reply brief as well as a petition for writ of habeas corpus and supporting exhibits (case No. E044058) based on trial counsel’s failure to renew the suppression motion in the superior court.
On October 2, 2007, this court informed the parties that defendant’s writ petition would “be considered with the appeal” in case number E042193 “for the sole purpose of determining whether an order to show cause should issue.”
II
DISCUSSION
A. Defendant’s Appeal
In his appeal, defendant contends the trial court erred in denying his motion to suppress the evidence. We agree with the People that defendant waived his right to appeal the denial of the suppression motion by failing to renew it in the superior court. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal); People v. Hoffman (2001) 88 Cal.App.4th 1, 3 (Hoffman).)
Our Supreme Court in Lilienthal, supra, 22 Cal.3d 891 held that a defendant must seek review of the magistrate’s suppression ruling in the superior court “to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court’s judgment for error it did commit and that was never called to it’s attention.” (Id. at p. 896, fn. omitted.) In Hoffman, supra, 88 Cal.App.4th 1, our colleagues in Division Three concurred with the holding in Lilienthal and held the unification of the municipal and superior courts did not affect the Lilienthal mandate that a defendant must renew the suppression motion before the trial court to preserve the issue for appeal. (Hoffman, at p. 3.)
In the present matter, as defendant acknowledges, DPD Gregory failed to renew defendant’s motion to suppress the evidence in the superior court. Because defendant pleaded guilty without renewing his motion to suppress, the superior court did not have the opportunity to review the magistrate’s conclusions of law. Accordingly, since defendant failed to renew his suppression motion, we find the issue has been waived. (Hoffman, supra, 88 Cal.App.4th at p. 3.)
B. Defendant’s Petition for Writ of Habeas Corpus
Defendant contends his trial counsel was ineffective for failing to renew the suppression motion in the superior court.
In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Hence, such a claim has two components: deficient performance and prejudice. (Strickland v. Washington, at p. 687; People v. Williams (1997) 16 Cal.4th 153, 214-215; In re Avena (1996) 12 Cal.4th 694, 721; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails.
In evaluating trial counsel’s actions, “[a] court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, 17 Cal.4th 468, 541.) Where as here the claim is that counsel’s performance was deficient because counsel failed to renew defendant’s suppression motion in the superior court, the defendant must show that reasonably competent counsel would have renewed such a motion and that the motion would have been successful. (See, e.g., People v. Grant (1988) 45 Cal.3d 829, 864-865; People v. Frye (1998) 18 Cal.4th 894, 989.) In other words, to prove counsel’s performance was deficient for failure to make a motion or renew a motion, the defendant must prove the motion would have been meritorious. It is well settled that “[c]ounsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) “The Sixth Amendment does not require counsel ‘“to waste the court’s time with futile or frivolous motions.”’” (People v. Memro (1995) 11 Cal.4th 786, 834, quoting U.S. v. Hart (1st Cir. 1991) 933 F.2d 80, 83; see also People v. Freeman (1994) 8 Cal.4th 450, 509, People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.)
“Applying these principles to the failure to raise the issue of the legality of the search in the trial court, we conclude it is necessary to determine the legality of the search in order to determine whether counsel was constitutionally ineffective. If the search was invalid, failing to preserve the issue constituted deficient performance when measured against the standard of a reasonably competent attorney. [Citation.] Furthermore, the failure to preserve the issue of the legality of the search is prejudicial to the defendant if there would not have been sufficient evidence, otherwise, to convict. [Citation.] Hence, to determine whether counsel was constitutionally ineffective for failing to preserve the issue, we must consider the merits of the Fourth Amendment argument.” (People v. Hart (1999) 74 Cal.App.4th 479, 486-487, citing Strickland v. Washington, supra, 466 U.S. 668, 686.)
An appellate court defers to the factual findings made by the trial court, here the magistrate, where supported by substantial evidence, but it exercises its independent judgment to determine whether, on the facts found, the search and seizure were reasonable under Fourth Amendment standards. (Ornelas v. U.S. (1996) 517 U.S. 690; People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Ramsey (1988) 203 Cal.App.3d 671, 677-679.)
In other words, “‘[i]n reviewing the trial court’s denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts.’ [Citation.] In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court’s reasoning. [Citations.]” (People v. Zichwic (2001) 94 Cal.App.4th 944, 950-951, quoting People v. Jenkins (2000) 22 Cal.4th 900, 969 and citing People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19, People v. Ellis (1993) 14 Cal.App.4th 1198, 1201.) “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. Under the well-established principles of appellate review, all presumptions favor proper exercise of that power and the court’s finding must be upheld if . . . it is supported by substantial evidence. [Citation.]” (People v. Bloom (1983) 142 Cal.App.3d 310, 316.)
Defendant claims that the initial detention was unlawful because the officers, “relying on vague information from an unidentified informant at an unknown time, and based on unspecified knowledge, detained [defendant].”
In determining whether an unreasonable seizure has occurred, police contacts fall into one of three basic categories: a formal arrest or similar restraint on an individual’s freedom of movement, which requires probable cause; a detention, which is limited in duration, scope, and purpose and requires an articulable suspicion that the individual was or will be involved in criminal activity; and a consensual encounter, which does not involve any restraint on the individual’s freedom and, thus, requires no justification. (People v. Hughes (2002) 27 Cal.4th 287, 327.) The People argue the initial contact was based on a reasonable suspicion that defendant was engaged in criminal activity.
In United States v. Arvizu (2002) 534 U.S. 266, 273-274 [122 S.Ct. 744, 151 L.Ed.2d 749], the United States Supreme Court set forth applicable Fourth Amendment jurisprudence in the context of a temporary detention: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security,’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘“may be afoot.”’” (Id. at p. 273;see also People v. Butler (2003) 111 Cal.App.4th 150, 160 and cases cited therein.)
In determining the propriety of an investigatory detention, the guiding principle is “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) We make such a determination by examining “‘the totality of the circumstances’” in the case. (Ibid.) “Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.” (Ibid., citing Alabama v. White (1990) 496 U.S. 325, 330, [110 S.Ct. 2412, 110 L.Ed.2d 301].)
Though there was no evidence that the officers were relying on an anonymous tip made to dispatch when the officers went to the Firehouse Tavern concerning a disturbance, we will assume that that was the case, since that was the court’s implied finding found. An anonymous tip’s reliability does not “depend exclusively on its ability to predict the suspect’s future behavior [citation] or the officer’s ability to corroborate present illegal activity [citation]. Rather, the tip’s reliability depends upon an assessment of ‘the totality of the circumstances in a given case.’ [Citations.]” (People v. Dolly (2007) 40 Cal.4th 458, 464.) To provide sufficient indicia of reliability to justify an investigatory stop, a suitably corroborated anonymous tip must be “‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’” (Id. at p. 471, quoting Florida v. J.L. (2000) 529 U.S. 266, 272 [120 S.Ct. 1375, 146 L.Ed.2d 254].)
The evidence is unclear of as to who made the call to 911 concerning a disturbance at the Firehouse Tavern, i.e., it is unknown whether it was a patron of the bar, an employee of the bar, or a passerby who saw the disturbance.
In Alabama v. White, supra, 496 U.S. 325, the police received an anonymous tip that a woman carrying cocaine in an attaché case would leave an apartment building at a specific time, get into a car matching a specific description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped and searched, and drugs were found in an attaché case in her vehicle as well as in her purse. (Id. at p. 327.)
The United States Supreme Court concluded the tip alone did not justify the stop, but the tip coupled with observations of the defendant’s movements in accordance with the tipster’s predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Alabama v. White, supra, 496 U.S. at p. 332.)
In Florida v. J.L., supra, 529 U.S. 266, an anonymous caller reported that a young Black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three Black males “‘just hanging out [there].’” (Id. at p. 268.) One of the them, J.L., was wearing a plaid shirt. The officers did not see a weapon, and J.L. made no threatening or unusual movements. One of the officers approached J.L., frisked him, and discovered a gun. (Ibid.)
The high court concluded the information received by the police was insufficient to justify the stop and frisk. According to the court, “[t]he tip in the instant case lacked the moderate indicia of reliability present in [Alabama v.] White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” (Florida v. J.L., supra, 529 U.S. at p. 271.)
The court rejected the state’s argument that reliability could be based on the tipster’s description of the physical characteristics of the defendant, i.e., a Black male wearing a plaid shirt at a bus stop. The court explained: “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Florida v. J.L., supra, 529 U.S. at p. 272.)
Finally, the court rejected adoption of a firearm exception based on the danger presented. Such an exception, the court explained, “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” (Florida v. J.L., supra, 529 U.S. at p. 272.)
In People v. Jordan (2004) 121 Cal.App.4th 544, the police received an anonymous telephone tip about a man in a park carrying a concealed handgun and threatening to shoot people. The man was described as Black; light-skinned with a bald head; and wearing a black jacket, tan pants, a white shirt, and red boots. The caller indicated the man was carrying the gun in his right jacket pocket. (Id. at pp. 548-549.)
A police officer arrived at the park and observed the defendant, who matched the description, sitting on a park bench. The officer could not see a gun bulge in the defendant’s clothing, and the defendant did not appear to be engaging in any illegal activity. After observing the defendant for a while, the officer directed him over and conducted a search. He discovered a handgun in the defendant’s jacket pocket. (People v. Jordan, supra, 121 Cal.App.4th at pp. 550-551.)
The Court of Appeal concluded there was only one factor that distinguished this matter from J.L., the fact that the anonymous tip was recorded. This factor detracted from any possibility that the call was an after-the-fact police fabrication. (People v. Jordan, supra, 121 Cal.App.4th at p. 562.) However, the court concluded this factual distinction was insufficient to warrant a different result. (Ibid.) At the time of the stop, the police had received no information predicting the defendant’s activities, as in White, and no information, other than the informant’s bare assertion, that the defendant was engaged in criminal activity. (Jordan, supra, at p. 559.)
In reaching its decision, the Jordan court did not consider the fact that the informant had told the 911 operator the defendant was threatening people with the gun. This information had not been relayed to the police who conducted the stop, and the People did not argue that such information should be imputed to the officers. (People v. Jordan, supra, 121 Cal.App.4th at pp. 549-550, 560, fn. 8.) The court also did not consider whether the result would be different if the anonymous call could be traced because, for example, it had been made from a home phone. No information about the possibility of tracing had been presented at the suppression hearing. (Id. at pp. 561-562.)
Defendant contends the present matter is controlled by J.L. and Jordan and argues that the fact that Officer Drew found a person matching the description given by the informant arguing with another person at the location identified by the informant is not enough. As noted below, J.L. and Jordan are distinguishable from the present matter.
Based on the totality of circumstances presented to him, Officer Drew was reasonable in suspecting that defendant was, or was about to be, engaged in criminal activity when he encountered defendant. (People v. Butler, supra, 111 Cal.App.4th at p. 160.) Officer Drew received a radio call concerning a Hispanic male wearing a shirt and shorts causing a disturbance outside of the Firehouse Tavern, a local sports bar located in a high-crime area. The call also stated that the individual was potentially armed. Officer Drew immediately responded to the scene, arriving one to two minutes after the call from the police dispatcher. Upon arrival, Officer Drew observed two men arguing in the middle of the street in the front of the car. One of the men matched the description of the suspect identified in the call. A significant factor in finding reasonable suspicion in this case is Officer Drew’s observation, after having received a call concerning a disturbance at the Firehouse Tavern, that defendant was arguing in the middle of the street. He did not merely observe defendant standing at a bus stop or sitting on a park bench. (Cf. Florida v. J.L., supra, 529 U.S. at p. 272; People v. Jordan, supra, 121 Cal.App.4th at p. 549.) The observation of the officer confirmed the criminal activity alleged in the tip, a disturbance. Because the officer at the scene was able to corroborate defendant’s criminal conduct, this case is distinguishable from J.L. and Jordan.
Defendant’s conduct clearly fell within the range of activities that are criminalized under section 415, otherwise known as “disturbing the peace,” or “fighting in public.” That section provides misdemeanor punishment for anyone “who unlawfully fights in a public place or challenges another person in a public place to fight,” “who maliciously and willfully disturbs another person by loud and unreasonable noise,” or “who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”
As stated above, we consider the totality of circumstances in determining whether reasonable suspicion supports a detention (People v. Butler, supra, 111 Cal.App.4th at p. 160); we do not examine each factor by itself to determine whether, standing alone, the factor is susceptible of innocent explanation (United States v. Arvizu, supra, 534 U.S. at p. 277 [“[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct”]). The observation made by the officer of defendant arguing in the middle of the street in front of a local bar at night, along with the other circumstances, supported a reasonable suspicion that defendant was, or was about to be, engaged in criminal activity. (Butler, at p. 160.)
Furthermore, given Officer Drew’s experience and training, his knowledge of the area where the Firehouse Tavern is located as a high-crime area, and his observations of defendant at the scene, Officer Drew was justified in detaining defendant for further investigation. A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233; In re Tony C. (1978) 21 Cal.3d 888, 893-894; United States v. Arvizu, supra, 534 U.S. at pp. 274-276; United States v. Sokolow (1989) 490 U.S. 1 [109 S.Ct. 1581, 104 L.Ed.2d 1].) Even if individual factors are susceptible to innocent explanation, and some factors are more probative than others, taken together, they may suffice to form a particularized and objective basis for an investigatory stop. (Souza, at p. 233; Arvizu, at p. 277.)
Finally, the protective frisk conducted by Officer Drew was supported by reasonable suspicion that defendant was armed. The call received by Officer Drew through dispatch indicated that defendant was possibly carrying an unknown weapon. A police officer who lacks probable cause to arrest may undertake a patdown search where the officer has reason to believe he is dealing with an armed and dangerous individual. The belief must be supported by specific, articulable facts together with reasonable inferences, which the officer may draw from these facts in light of his experience. (Terry v. Ohio (1968) 392 U.S. 1, 27-28 [88 S.Ct. 1868, 20 L.Ed.2d 889].) The sole justification of the search “is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Id. at p. 29.) “‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ [Citation.]” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
Officer Drew had specific and articulable facts to warrant his safety concerns. He had just received a call from dispatch indicating that defendant was involved in a disturbance at the Firehouse Tavern and that defendant might be carrying an unknown weapon. At the time of Officer Drew’s investigation, it was dark. During the investigation, he saw defendant engaged in an argument in the middle of the street. It was reasonable for Officer Drew to be concerned about his safety and the safety of others based on the call. Officer Drew’s concern for his safety was justified especially given the circumstances of the case and because it is well established that officers are assaulted and killed during routine traffic stops. (See In re Arturo D. (2002) 27 Cal.4th 60, 85, fn. 23; People v. Rodriguez (1986) 42 Cal.3d 730, 742-743 [two California Highway Patrol officers were shot to death while making a routine traffic stop].) Given the circumstances of this case, Officer Drew’s search of defendant was lawful.
Defendant claims that Officer Drew exceeded the scope of the frisk by reaching into his pocket and retrieving the metal knuckles. This claim is unsupported by the record. There is overwhelming evidence to show that Officer Drew reached into defendant’s pocket because he felt a hard, circular object, which he believed might be a gun. Under People v. Glaser (1995) 11 Cal.4th 354 and Terry v. Ohio, supra, 392 U.S. 1, a police officer’s need to ensure his safety while he is engaged in a reasonable investigation of suspected criminal activity is a government interest which justifies a limited intrusion on personal liberty and privacy. (Terry, at p. 30; Glaser, at pp. 364-365.) Furthermore, “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Minnesota v. Dickerson (1993) 508 U.S. 366, 375-376 [113 S.Ct. 2130, 124 L.ed.2d 334], fn. omitted; see also People v. Dibb (1995) 37 Cal.App.4th 832, 835-836.)
Here, though defendant argues to the contrary, there is substantial evidence to support a finding that what Officer Drew felt in defendant’s pocket was an object whose contour and mass made it immediately apparent that the object was a weapon of some sort. Officer Drew felt a hard object with interlocking circular rings, about four to five inches in length and two to three inches wide, in the pocket of an individual who was already identified as possibly being armed. Officer Drew believed the object to be a gun. Although the object turned out to be a different weapon, under the totality of the circumstances, Officer Drew’s inferences were clearly reasonable. Thus, as soon as the officer felt the contours of the brass knuckles in defendant’s pocket, and because of his experience recognized it as contraband, the warrantless seizure was justified. There was no invasion of defendant’s privacy beyond what was already authorized by the officer’s search for weapons. (Minnesota v. Dickerson, supra, 508 U.S at p. 376.)
As an alternative claim, defendant also contends that the trial court incorrectly denied his suppression motion because the prosecutor failed to show the basis for, and thus the reliability of, information Officer Drew received regarding the disturbance at the Firehouse Tavern. According to defendant, such evidence was necessary under People v. Harvey (1958) 156 Cal.App.2d 516, Remers v. Superior Court (1970) 2 Cal.3d 659, and People v. Madden (1970) 2 Cal.3d 1017, the trilogy of cases collectively cited for the so-called Harvey-Madden (or Harvey-Remers-Madden) rule. Neither defendant’s detention nor his arrest was contrary to this so-called rule. It is well settled in California that officers can make arrests based on information and probable cause furnished by other officers. (Remers, at p.666; Madden, at p. 1021.) “These cases, however, require that when the first officer passes off information through ‘official channels’ that leads to arrest, the officer must also show basis for his probable cause. In other words, the so-called ‘Harvey-Madden’ rule requires the basis for the first officer’s probable cause must be ‘something other than the imagination of an officer who does not become a witness.’ [Citation.]” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553; see also People v. Gomez (2004) 117 Cal.App.4th 531, 540-541.)
The Harvey-Madden rule is inapplicable to the facts of this case because defendant’s detention and subsequent arrest were not based solely on information provided by police dispatch. When Officer Drew arrived at the Firehouse Tavern, he observed defendant arguing with another person in the middle of the street. This is not a case in which defendant’s arrest was based solely on information obtained from another officer or other official source. It was only when Officer Drew’s field observations could corroborate the information provided through police dispatch that Officer Drew was justified in detaining and subsequently arresting defendant. Further, nothing in the record supports an inference that the officer manufactured the call from police dispatch, and there was no evidence offered to show that the source of information came from police channels rather than a citizen informant.
“[T]he dispatcher or the person providing the probable cause 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.) Thus, in People v. Orozco (1981) 114 Cal.App.3d 435, 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.” (Id. at p. 444.) The court rejected the defendant’s Harvey-Madden challenge to the detention and subsequent search because “[t]he presence of these cartridges certainly supports a very strong inference that the police did not make up the information from the informant.” (Orozco, 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 burglarized home . . . and in the immediate vicinity of the area where the officers were directed by the dispatcher.” (Johnson, at p. 1320.)
In the instant case, based on Officer Drew’s testimony, it is clear that neither the informant nor the call from dispatch were fabricated by someone in the Desert Springs Police Department. The call from dispatch concerned an ongoing disturbance; the responding officer observed that same conduct at the scene; defendant matched the description of the suspect; and defendant was armed, just as the informant alleged to police dispatch. As in Johnson and Orozco, police observations at the scene constituted strong circumstantial proof that the police did not make up the information broadcast to the officers in the field.
Based on the foregoing, we find defendant’s initial detention, seizure, and search to be lawful; and that the magistrate properly denied defendant’s suppression motion.
Since the detention, seizure, and subsequent search were legal, trial counsel was not constitutionally ineffective for failing to preserve the issue for review by renewing defendant’s suppression motion in the superior court. For this same reason, defendant also cannot establish that he was prejudiced by his counsel’s failure to renew his suppression motion in the superior court. Accordingly, he cannot establish ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)
III
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: RAMIREZ, P.J., McKINSTER, J.