People v. Mayes CA1/1 ( 2021 )

Filed 10/4/21 P. v. Mayes CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Appellant, A160820
v. (Solano County
EDWARD MAYES, Super. Ct. No.
FCR343342)
Defendant and Respondent.
After granting defendant Edward Mayes’ motion to suppress, the trial
court dismissed the criminal complaint against him. (Pen. Code, § 1538.5.)1
On appeal, the People maintain the court erred in sustaining a Harvey-
Madden2 objection and further erred in dismissing the complaint as to the
misdemeanor child endangerment count. We agree and order the complaint
reinstated as to the firearm and child endangerment counts.
BACKGROUND
Defendant was charged by complaint with one count of felony
concealment of a firearm in a vehicle (§ 25400, subd. (a)(1)), one count of
felony carrying of an unregistered firearm (§ 25850, subd. (a)), and one count
All further statutory references are to the Penal Code unless
1
otherwise indicated.
People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v.
2
Madden (1970) 2 Cal.3d 1017 (Madden).
1
of misdemeanor child endangerment (§ 273a, subd. (a)) based on events that
occurred in January 2019, and one count of misdemeanor brandishing a
concealable firearm in public (§ 417, subd. (a)(2)(A)) based on events that
occurred in December 2018.
Pursuant to section 1538.5, defendant moved to suppress all evidence
obtained during the search of his vehicle in connection with the January 2019
incident. In a footnote in his memorandum of points and authorities
supporting his motion, defendant notified the district attorney that he
intended to “raise a Harvey[-]Madden objection on the hearing of this
motion.”
The People opposed the motion, variously asserting defendant’s
detention was lawful because it was “based upon a reasonable suspicion of
criminal activity,” defendant’s arrest for child endangerment was lawful
“[g]iven the extremely reckless and dangerous driving of the defendant,” and
the subsequent search was lawful as a search incident to defendant’s arrest
under Arizona v. Gant (2009) 556 U.S. 332.
Neither party mentioned Harvey-Madden in their supplemental briefs.
At the combined suppression and preliminary hearing, the trial court
heard from Vacaville Police Officers Kenny Meek and Dustin Willis.
In December 2018, a woman called the police department to report
“some type of road rage incident,” and she was instructed to drive to the
department parking lot. There, she met with Officer Meek. The woman told
Meek she had been approaching a stop sign, when a vehicle started to pull
out in front of her. She “utilized her horn and slammed on her brakes.” The
man in the vehicle ahead of her exited his car, walked toward her passenger
side, exhibited a gun, and “pulled the slide back as if they were chambering a
round.” The victim described the man as “a medium stocky built Hispanic
2
male with a ponytail” and stated there was a “[h]eavier-set white female” in
“her mid-20s . . . with brown hair” in the vehicle as well. The victim went on
to state that when she noticed the man with his gun, “[s]he left the scene.”
As she was leaving, the man got back into his car and “began to follow her.”
After making a turn, “the other vehicle began to pass her, and . . . she utilized
her cell phone to record the vehicle.” She tried to follow him for “a few
moments” but lost “the vehicle after it ran a red light.” She then telephoned
the police and reported the incident.
When Officer Meek began to testify about the victim’s cell phone video,
defense counsel objected on the grounds of “Multiple hearsay. Foundation.
Harvey-Madden.” The court asked if the prosecution was “asking about the
words in the video.” When the prosecution responded no, the court replied, “I
think the testimony was that he watched the video . . . that she took earlier of
the individual who passed her after incident, so overruled.” Defense counsel
never developed the objection further.
Officer Meek then testified that he viewed the cell phone video and
observed a “dark-colored sedan.” Using the “particular time and date
associated” with the cell phone video Officer Meek retrieved footage from a
“pole-mounted camera system” in the area to give him a “general time frame
and area to review video.” He observed a “dark-colored four-door sedan” in
the area “consistent with the sedan” he had seen on the woman’s cell phone
video. He had previously used the pole-mounted camera systems to retrieve
videos and found the “time and date for the[] videos . . . to be accurate.” From
the pole-mounted camera footage, Officer Meek was able to pause the video
and obtain the license plate of the vehicle. He then ran a records check,
retrieved the registered owner’s name, and pulled up the owner’s picture.
Officer Meek identified defendant as the registered owner from the retrieved
3
photo. He attempted to contact the victim but “she did not follow through
after . . . several attempts.” Officer Meek then sent out an officer “briefing,”
consisting of a description of the suspect, a “description of [the] vehicle,
including [the] license plate and information that [the] subject possibly had a
firearm.”
After Officer Meek’s testimony, defense counsel moved to strike. The
trial court asked, “As to the prelim? As to the 1538?” Defense counsel
responded that he would like “to reserve my argument until the end. [¶] But
if this is—the way the police report is written by Detective Willis, he makes
an oblique reference to his, but his—according to his police report, bases for
going after my client is based on his driving and child endangerment. So I
don’t understand why the brandishing is relevant.” After clarifying with
Officer Meek that the victim “wished to identify” defendant but never showed
up to make the identification, counsel stated, “So my guess is that this was
one of the reasons why Willis paid attention to my client when he saw him.”
In January 2019, almost three weeks after receiving the briefing,
Officer Willis was on patrol and saw defendant exit his residence and walk
toward his vehicle that was “previously described” in the briefing. When
Officer Willis received the e-mail “briefing” in December, he had “recognized
the name of the registered owner” because he had “previously contacted the
registered owner in that vehicle on a traffic stop.”
Defendant “appeared to see” Officer Willis’ marked patrol car, and he
“turned around and went back inside” his residence. Officer Willis drove a
block away and parked. From there, he observed defendant driving past him
and noted defendant’s vehicle had “tinted windows on all the side windows
and the rear window,” in violation of the vehicle code. Officer Willis made a
U-turn, and defendant sped away and “appeared to be traveling at a very
4
high rate of speed” through a residential neighborhood. Officer Willis
accelerated and followed the car in an attempt to catch up to it. Officer Willis
“was going at least 60 miles an hour, and . . . wasn’t catching up to the
defendant.”
At one point, defendant, who was headed south down a road, “entered
the northbound lane completely” to pass a bus. Officer Willis then activated
his “emergency lighting equipment and siren,” continued to pursue
defendant, and advised responding officers that defendant “was probably
going home.”
Eventually, defendant “rapidly” slowed down and, having made a giant
circle, parked in his own driveway. Officer Willis parked behind defendant.
He noticed defendant “making furtive movements with his—basically leaning
forward. His butt came off the seat first, as if someone was lifting himself up
in the driver’s seat, and then [he] saw the front half of [defendant’s] body and
his arms dip towards basically the floorboard of the vehicle.” This led Officer
Willis to believe, based on his experience, that defendant “was either
concealing something or arming himself with something.”
Officer Willis exited his patrol car, drew his firearm, and ordered
defendant to place his hands on the roof of his vehicle. Defendant rolled
down the driver-side window and placed his hands “outside of the car.” Once
backup arrived, officers ordered the occupants out of the vehicle one by one.
Defendant’s girlfriend was in the front passenger seat, and his three-year-old
son was in the rear passenger seat behind the driver. Officer Willis described
defendant’s girlfriend as a “white female adult; larger, very heavy set.”
Officer Willis arrested defendant because he had “probable cause” to do so for
child endangerment and reckless driving based on his “observed dangerous
driving behavior.” He then performed a search of the vehicle based on
5
“several reasons”—the information in Officer Meek’s briefing regarding the
brandishing of a firearm (which included specific information such as
defendant’s license plate number, his photograph, and his description
provided by the victim), as well as Officer Willis’ own observation of “evasive
maneuvers to get away from the police” and “furtive movements consistent
with someone who would be either concealing or retrieving a handgun from
under the seat.”3 A search of the vehicle revealed a “loaded Glock .45 caliber
handgun.”
On cross-examination, Officer Willis stated he “made several attempts”
to contact defendant prior to the January 2019 events. “[W]henever I
thought about it on patrol, I’d drive down that street just to see if the car was
there” but he never knocked on defendant’s door. Officer Willis also stated
that as far as he knew, there was never any probable cause to arrest
defendant for the brandishing offense.
The victim did not testify and neither the victim’s cell phone video, the
pole-mounted camera footage, nor Officer Willis’ bodycam cam video were
entered into evidence, although the latter video was played for the court.
Only Officer Willis’ “dash cam video” was entered into evidence.
The court then heard from counsel. The People asserted there was
“reasonable suspicion to detain” defendant “based on multiple Vehicle Code
violations”—the tinted windows and “the driving that Officer Willis” to which
testified to. “There was probable cause” for defendant’s arrest “as testified to
by Officer Willis for child endangerment based on his, the defendant’s, erratic
driving.” And finally, Officer Willis had probable cause to search the vehicle
3 Officer Willis also gave a fourth reason—that the “vehicle had to be
inventoried per our department policy prior to its impound.” However, the
car was never impounded. Instead, the officers chose to leave the car at
defendant’s home, where it was legally parked in his driveway.
6
because defendant matched the description in the briefing sent out by Officer
Meek, and further Officer Willis himself testified about defendant’s “evasive
driving” and later his “furtive movements . . . leading him to believe that
there is a weapon or some other contraband” in the vehicle.
At this point, the court stated, “Under [Gant], it seems like an officer’s
ability to search the vehicle where someone has been detained in handcuffs
away from the vehicle is now more limited than it used to be.” The court
went on to state, “I think there was a [Harvey-Madden] objection made
during the hearing. . . . [¶] I don’t necessarily disagree with you that having
all those facts in front of Officer Willis, there might have been probable cause
to search that vehicle. However, I think under the [Harvey-Madden] line of
cases, there is some burden on the People to present evidence confirming
what the source of that information was. [¶] You had one officer testify to
taking the statement from a female. No one was ever able to talk to or
contact that female again, and Officer Willis received that information in
briefing, but the [Harvey-Madden] line of cases stands for the one proposition
which is that if it could be alleged that some kind of a probable cause was
somehow fabricated by law enforcement, that the source of whatever it was
that is potentially fabricated has to be presented and that can be a dispatch
call from the individual. That could be that individual testifying. That could
be other confirming information that comes out in the record to support
whatever it was, the basis of the probable cause is based on.”
The prosecutor responded, “I didn’t specifically cite case law in the
People’s supplemental briefing with concern to the [Harvey-Madden]. That
didn’t seem like the issue the defense was focused on here, but there is case
law where if an officer gains the source of information from a civilian, that is
sufficient . . . , so I can bring up that case law if your Honor allows me a brief
7
recess if that is of great concern here.” The prosecutor went on to state, “I
think with Officer Meek actually contacting the victim in this case and
obtaining that information, and, also, the fact that he reviews not only
cellphone video from the victim but also goes on the city cameras and verifies
the information that the witness is providing to him with concern to the
vehicle and license plate, that there is corroboration as to what the victim is
telling Officer Meek at that point.” However, the prosecutor acknowledged
the cellphone video was not in evidence. The court confirmed, however, that
that was “something that [Officer Meek] says he looked at.” The prosecutor
ended by stating, based on all the facts, Officer Willis “had reasonable cause
to believe that the defendant’s vehicle contained a firearm.”
In response, defense counsel maintained that whatever Officer Meek
“did on [his] own to try to independently corroborate, that was not brought
into evidence.” Further, defendant was never identified by the victim, and
the “video doesn’t show [defendant] as the driver.” Defense counsel asserted
the prosecution was “trying to bootstrap,” by stating, “ ‘Oh, yeah there is this
probable cause to arrest based on this brandishing,’ ” but the brandishing
offense was never confirmed. Defense counsel also argued the brandishing
offense happened weeks earlier, and “once you put him in the back of the
police car, then you get into whether or not the search was okay when he is
handcuffed under [Gant].” Officer Willis never testified that he saw a gun,
rather he stated defendant “ ‘was just moving around.’ ” Finally, the officers
did not search the car “under an automobile exception or a towing exception,”
because the car was legally parked and they did not get a warrant.
The trial court granted the motion to suppress the firearm, stating
Officer Willis could have, but had not, applied for a search warrant for the
vehicle. It then ruled that under Harvey-Madden, “the People are required to
8
bring some kind of evidence that what the first officer testified to wasn’t
something that was merely . . . the products of his imagination. In other
words, he didn’t make this up. That could be the 911 call made . . . that could
have been confirmed by the cellphone video of this victim of the alleged
brandishing . . . something that would have confirmed this. That something
wasn’t presented in this hearing. . . . [¶] That being the case, I think for
purpose of the 1538, a lot of Officer Willis’ assertions are simply not in
evidence because of the [Harvey-Madden] line of cases and without that,
there wasn’t sufficient justification for his search. [¶] So I’m going to grant
the 1538 motion as to this firearm.”
Having excluded the evidence of the firearm, the court ruled there did
not “appear to be a sufficient basis to hold him to answer” for either of the
January 2019 felony firearm counts or the December 2018 misdemeanor
brandishing count.4 The court additionally dismissed the child
endangerment count for lack of sufficient evidence.
DISCUSSION
Motion to Suppress
The People maintain they “refuted . . . defendant’s Harvey/Madden
objection,” given that “Officer Meek was the first officer to receive
information from the victim regarding the road rage incident and given that
Officer Meek subsequently developed the defendant as a suspect in the
incident based upon further investigation.”
“In reviewing a trial court’s ruling on a motion to suppress evidence, we
defer to that court’s factual findings, express or implied, if they are supported
4 The court also dismissed the misdemeanor brandishing count because
of the lack of identification evidence, and the People do not challenge that
ruling on appeal.
9
by substantial evidence. [Citation.] We exercise our independent judgment
in determining whether, on the facts presented, the search or seizure was
reasonable under the Fourth Amendment.” (People v. Lenart (2004)
32 Cal.4th 1107; 1119; People v. Nishi (2012) 207 Cal.App.4th 954, 960.)
The Harvey-Madden rule stands for the proposition that while police
officers may rely on information provided to them by other officers in making
arrests, “ ‘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.’ [Citations.] 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.” (Remers v.
Superior Court (1970) 2 Cal.3d 659, 666-667.) In sum, the prosecution must
show that the officer furnishing the information generating the arrest had
probable cause to believe the arrest was justified. (People v. Johnson (1987)
189 Cal.App.3d 1315, 1320.)
“Probable cause for a search or arrest without a warrant may be proven
by information passed from one officer to another if it is shown the
information was ‘ “ ‘factual rather than conclusionary,’ related ‘specific and
articulable facts,’ was the product of personal observations by the informing
officer and was reliable.” [Citations.]’ (People v. Ramirez [(1997)]
59 Cal.App.4th [1548,] 1554.) Ultimately, the issue boils down to whether
the latter officer’s reliance on the information was reasonable.” (People v.
Gomez (2004) 117 Cal.App.4th 531, 540.)5
5We note the parties are not contesting defendant’s arrest but only the
subsequent search. Officer Willis testified he arrested defendant not because
10
The Harvey-Madden rule has been satisfied. “ ‘[W]hile 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.” ’ ” (Madden, supra, 2 Cal.3d at p. 1021, italics
added.) Here, Officer Meek testified as to how he established the basis for
the information furnished in his briefing.
Defendant acknowledges Officer Meek—the officer who originally
furnished the information—testified as to the basis for that information.
However, he maintains the “Harvey-Madden rule is not ipso facto satisfied
when the transmitting officer testifies at a suppression hearing,” and that
here, “there was insufficient foundation and corroboration for much of” how
Meek developed defendant as a suspect because the “prosecution did not
introduce proof of each link of the chain” of communication. He points out
the prosecution could have introduced evidence of the victim’s 911 call, the
dispatch received by Officer Meek, the computer-assisted-dispatch printout,
the body camera recording of Officer Meek’s interaction with the victim, the
victim’s cell phone video, and the city camera, and could have called the
victim as a witness—but it did none of these things.
Defendant’s reliance on In re Eskiel S. (1993) 15 Cal.App.4th 1638(Eskiel S.) is misplaced. In that case, the arresting officer testified that he
“heard a radio broadcast which reported a possible gang fight involving 10 to
12 Black persons including 1 possibly armed.” (Id. at p. 1641.) After
proceeding to the location identified in the broadcast, the officer “saw several
of information supplied by Officer Meek’s briefing, but because Officer Willis
personally witnessed defendant’s reckless driving with the child in the car.
11
persons being chased by an officer though the park.” (Ibid.) He drove to the
other side of the park to cut off the fleeing individuals, made contact with
them, and ordered them to stop. They were eventually detained, and a
search of the defendant revealed a bag of cocaine. (Id. at pp. 1641-1642.)
After the arresting officer testified that he detained the defendant because he
was “resisting arrest” and that he “had no other basis for detaining [the
defendant] aside from the information contained in the radio broadcast,” the
defendant moved to suppress and interposed a Harvey-Madden objection to
the admission of the contents of the radio broadcast. (Id. at p. 1642.) The
trial court found the detention was supported by reasonable suspicion. (Ibid.)
The Court of Appeal reversed, stating “None of the pursuing officers
testified at the suppression hearing,” and there was “no basis upon which the
juvenile court could have found the pursuing officers had cause to detain [the
defendant]. The only inference which is supported by the evidence is that the
pursuing officers had heard the same radio broadcast which [the arresting
officer] heard and were responding to the information contained therein. . . .”
(Eskiel S., supra, 15 Cal.App.4th at p. 1642.) “The record is void of any
evidence of the source of the information contained in the radio broadcast.
None of the evidence presented at the suppression hearing . . . provided any
insight into the origin of the information about a gang fight which was
relayed to [the arresting officer] and the other officers. . . . Without a source
who can testify to the validity and reliability of the information, it cannot be
determined whether th[e] information was sufficient to provide reasonable
suspicion to detain [the defendant.]” (Id. at p. 1644.)
That is not the case here. Officer Meek testified in detail as to the
source of the information communicated to Officer Willis.
12
What defendant’s contention boils down to is that the People cannot
rely on Officer Meek’s testimony, alone, and the prosecutor was required to
also call the victim as a witness or introduce some other evidence, such as the
911 call or the victim’s cell phone video, at the section 1538.5 hearing.
However, the Harvey-Madden rule does not stretch so far. Officer
Meek was relying on information from a citizen informant. (See People v.
Ramey (1976) 16 Cal.3d 263, 269 [“as a general proposition . . . private
citizens who are witnesses to or victims of a criminal act, absent some
circumstance that would cast doubt upon their information, should be
considered reliable”].) Further, the “rule requiring the People to show the
basis of the information furnished through official channels, relied upon as
proof of probable cause, is not intended to require the production and
examination of the informing officer to determine whether factual
information he observed and transmitted is correct. The real issue in the
premises is whether reliance on the information received is reasonable, not
whether the facts related in the information are correct. [Citation.] The
sufficiency of the showing on this issue is dependent upon the sufficiency of
the evidence to justify the conclusion reliance on such information was
reasonable, and not upon the sufficiency of the evidence to justify the
conclusion the transmitting officer’s observations were correct.” (People v.
Poehner (1971) 16 Cal.App.3d 481, 489; see In re Richard G. (2009)
173 Cal.App.4th 1252, 1261 (Richard G.) [disagreeing with Eskiel G.].)
The record amply demonstrates the information received by Officer
Meek was sufficiently reliable. It was furnished to him by the alleged victim,
Officer Meek personally observed the victim’s cell phone video, he looked
through the pole-camera footage to find a vehicle that matched the
description given by the victim and shown in the cellphone video, he
13
examined video taken in the area in which the victim said the events
occurred and during the time that matched the cell phone video, he had the
victim’s name and cell phone number, the victim also contacted Officer Meek
the day after the incident indicating she “wished to identify the responsible
party” and, although she ultimately did not show up, she “agreed to meet” the
following week to look at photo lineup. All of this evidence supports a strong
inference that the information supplied in Officer Meek’s briefing was not
manufactured. (See Richard G., supra, 173 Cal.App.4th at p. 1259 [where
“the evidence and the reasonable inferences flowing from it show that the
police actually received a telephone report creating reasonable suspicion of
criminal wrongdoing, it is not necessary to require strict compliance with the
‘Harvey Madden’ rule”]; People v. Orozco (1981) 114 Cal.App.3d 435, 444 [The
whole point of the Harvey-Madden “rule is to negate the possibility that the
facts which validate the conduct of the officers in the field are made up inside
the police department by somebody who is trying to frame a person whom he
wants investigated. [¶] The best way of negating ‘do it yourself probable
cause’ is to have the officer who received the information from outside the
police department testify.”].)
Nor does the Harvey-Madden rule require an officer, such as Officer
Willis, to go back and investigate the veracity of the informing officer’s
statements. It is an evidentiary rule premised on the fact that it is
reasonable for an officer to rely on information furnished to him or her
through official channels.
Probable Cause to Search the Car
Defendant contends that even considering Officer Meek’s testimony,
Officer Willis did not have probable cause to search the car. Defendant
makes two points in this regard. First, he highlights Officer Willis’ testimony
14
that he did not have probable cause to arrest defendant prior to the January
17 reckless driving incident. Second, he asserts “it cannot fairly be said that
probable cause nevertheless existed to believe that his vehicle would have
contained evidence of that brandishing,” and certainly not “twenty days after
the reported brandishing.”
As to defendant’s first contention, Officer Willis’ belief that he did not
have a sufficient basis to arrest defendant for the December brandishing
event is not relevant to the question of whether the information he received
through the briefing, in combination with the other things Officer Willis
observed, provided sufficient probable cause to search defendant’s vehicle.
Moreover, Officer Willis was correct in his assessment of the situation, as
under section 836 a “peace officer may arrest a person . . . without a warrant”
only if the “officer has probable cause to believe that the person . . . has
committed a public offense in the officer’s presence,” “[t]he person arrested
has committed a felony, although not in the officer’s presence,” “[t]he officer
has probable cause to believe that the person to be arrested has committed a
felony, whether or not a felony, in fact has been committed.” (§ 836, subd.
(a)(1)-(3).) Here, the crime relayed in Officer Meek’s briefing—brandishing a
firearm—was a misdemeanor and therefore could not have supplied Officer
Willis with justification to arrest defendant without a warrant. (§ 417, subd.
(a)(1).)
In support of his second contention, that there was an undue passage of
time between the brandishing incident and the reckless driving incident,
defendant cites to People v. Hulland (2003) 110 Cal.App.4th 1646. Defendant
acknowledges Hulland “examined probable cause in the context of an
affidavit for a search warrant,” but maintains “a similar analysis applies to
the search conducted in this case.”
15
In Hulland, a police officer purchased drugs from the defendant in a
“parking lot in a different city” from where the defendant resided, and then
waited “52 days before seeking a warrant to search two residences where the
defendant allegedly live[d].” (Hulland, supra, 110 Cal.App.4th at pp. 1648,
1653.) Although the warrant “was based on stale information,” the trial court
denied the defendant’s motion to suppress on the ground “the officer executed
the warrant in good faith.” (Id. at p. 1648.) The Court of Appeal reversed.
While it agreed the warrant was not supported by probable cause since it was
based on information which had grown stale by the time the warrant was
issued, it concluded the good faith exception did not apply. (Id. at pp. 1653,
1656-1657.) With respect to the passage of time, the appellate court stated
there was no indication the defendant ever sold marijuana prior to the
controlled buy, there was no indication he ever sold drugs out of his home,
and there was no proof of ongoing activity to support probable cause to search
given the “hiatus between the sale and the search.” (Id. at p. 1655.)
Hulland is readily distinguishable. Not only did that case involve
probable cause in the context of an affidavit in support of a search warrant,
but the information that served as the basis for the warrant was nearly two
months old. Furthermore, in contrast to Hulland¸ here there was every
indication defendant had previously toted a gun along when he drove his car,
and the search was of the same car involved in the brandishing incident.
Additionally, defendant sped away at a reckless pace when he saw Officer
Willis, and when he pulled back into his driveway, his movements gave every
indication he was hiding an object under the front seat. All of this provided
ample evidence of “ongoing activity” connected to the brandishing incident.
It is true that an officer’s generic testimony that he or she observed
“furtive” movements by a defendant is not sufficient to establish probable
16
cause to search a car. (E.g., People v. Superior Court (Kiefer) (1970) 3 Cal.3d
807, 823 [mere furtive movement of occupant in vehicle being chased by
officer for traffic violation insufficient to establish probable cause]; Gallik v.
Superior Court (1971) 5 Cal.3d 855, 859 [“to constitute probable cause for . . .
[a] search, a ‘furtive gesture’ such as a motorist’s act of bending over inside
his car must be invested with guilty significance either by specific
information known to the officer or by additional suspicious circumstances
observed by him”].)
However, this is not such a case. Officer Willis had information that
three weeks earlier defendant possessed a firearm in his car and threatened
another driver with it, Officer Willis personally observed defendant attempt
to evade him by taking off at a high speed, and he personally observed the
very particularized way in which defendant moved before getting out of his
car—actions wholly consistent with attempting to hide a firearm under the
front seat. Accordingly, this is not a mere “furtive movement” case. (See,
e.g., People v. Moore (2021) 64 Cal.App.5th 291, 301-302 [based on totality of
circumstances, including the defendant’s nervous and furtive conduct, officer
had probable cause to search vehicle].)
In sum, neither of defendant’s challenges to the sufficiency of the
evidence to permit the search of his car withstands analysis.
Dismissal of the Child Endangerment Count
After the court ruled on the motion to suppress concerning the firearm
counts, the court asked the prosecutor if she would like the court “to make a
finding as to Count 3[—the child endangerment count—]or do you want to let
it go?” The prosecution confirmed she did want a finding and reserved
rebuttal argument.
17
Defense counsel asserted this was not a case of child endangerment
because the “child was lawfully with a car seat” as shown on the videos, and
Officer Willis’ single “reference to this driving on the wrong side of the road”
occurred because “[defendant] simply drove around a bus that was pulled
over and sticking out in the road to pass [it].” This, counsel maintained, did
not rise to the level of child endangerment, noting defendant “wasn’t even
cited for reckless driving.”
The prosecutor responded that based “on the speed, and there is
testimony there were lots of turns being made at these high speeds and going
in the opposite direction of traffic and blocking this bus,” there was “sufficient
information to support a child endangerment clause.” Further, defendant
was “traveling between 50 and 70 miles per hour within feet of vehicles, he
wouldn’t be able to stop if a vehicle were to pull in front of him” and if there
had been “some sort of accident, you know, given the high speeds and erratic
driving, that would definitely cause injury to the child.”
The court dismissed the charge, stating that “[b]ased on the evidence
that was presented, I don’t think there was enough evidence to support” it.
On appeal from a magistrate’s decision to dismiss at a preliminary
hearing, we review the magistrate’s legal conclusions de novo, upholding any
factual findings if they are supported by substantial evidence. If no
controlling factual findings were made, we review the record independently,
and if, in carrying out our independent review, we determine the evidence
supplied a rational ground for holding the defendant to answer, we must
reinstate the charge. (People v. Plumlee (2008) 166 Cal.App.4th 935, 938-939,
citing People v. Slaughter (1984) 35 Cal.3d 629, 639-640.)
Section 273a, subdivision (b) provides, “Any person who, under
circumstances or conditions other than those likely to produce great bodily
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harm or death, willfully causes or permits any child to suffer, or inflicts
thereon unjustifiable pain or mental suffering, or having the care or custody
of any child, willfully causes or permits the person or health of that child to
be injured, or willfully causes or permits that child to be placed in a situation
where his or her person or health may be endangered, is guilty of a
misdemeanor.” “[T]he word ‘likely’ in section 273a does not serve as a
measure for making the difficult and imprecise task of predicting future
human behavior. Rather, it is merely a measure for determining the risk of
present injury created by external and tangible circumstance or conditions.”
(People v. Chaffin (2009) 173 Cal.App.4th 1348, 1352.)
Officer Willis testified that while he endeavored to make a traffic stop,
defendant attempted to “avoid contact.” While Officer Willis did not activate
his lights and siren until after defendant passed the bus and he was almost
back at his residence, Officer Willis was “under the assumption” his presence
was known to defendant. Officer Willis’ dashcam footage shows
approximately one minute of a pursuit, in which defendant seemingly makes
a series of turns—mostly off camera—ending up back at his residence.
Although there is no evidence on the video of speed, Officer Willis testified he
was driving up to 60 miles per hour in an effort to catch up to defendant, and
he still could not do so. Indeed, for most of the video, defendant is just out of
sight. Further, in order to avoid capture, defendant crossed into the other
side of the road to get around a bus, which appeared to be pulled over to the
side either making a stop or parked. Although defendant “slowed down to
make a left turn,” he did not come to a complete stop at a stop sign. Finally,
defendant pulled into his driveway, Officer Willis pulled in behind him, and
approximately 10 seconds passed before defendant rolled down his window
and put his hands outside the vehicle.
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This entire sequence of events did, indeed, occur over a relatively short
period of time—but that is the point. The evidence clearly shows he engaged
in a high-speed chase in a residential neighborhood in an attempt to evade a
traffic stop, not to mention that he did so while carrying a loaded weapon in
the car. This was a sufficient showing to proceed on a child endangerment
charge.
DISPOSITION
The order on the motion to suppress and the order dismissing the two
firearm counts and the child endangerment count are reversed, and the
complaint as to these counts is reinstated.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A160820, People v. Mayes
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