People v. Chalak

Filed 3/11/20
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION OF THE SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
THE PEOPLE, APP-18-008503
Plaintiff and Respondent, (Super. Ct. No. 18016487)
v.
ARSHIA CHALAK, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San
Francisco County, Robert M. Foley, Judge. (Retired judge of the
Santa Clara Sup. Ct., assigned by the Chief Justice under art. VI,
§ 6 of the Cal. Const.) Reversed.
Erica G. Franklin, under appointment by the Appellate
Division, for Defendant and Appellant.
Suzy Loftus, Interim District Attorney, Chesa Boudin,
District Attorney, and Natalie B. Fuchs, Assistant District
Attorney, for Plaintiff and Respondent.
_________________________
A jury convicted appellant of domestic battery. Appellant
argues that the trial court committed reversible error when it
denied his motion to suppress evidence. After considering the
record, arguments, and applicable law, the judgment is
REVERSED. Our reversal on this ground makes it unnecessary
to reach appellant’s arguments regarding testimonial statements,
prosecutorial misconduct, and jury instructions.
I. FACTS AND PROCEDURAL HISTORY
On October 22, 2018, at about 1:30 p.m., San Francisco
Police Department Officer Philip Leung drove to Macy’s at 170
O’Farrell to investigate a report of domestic violence. Leung met
Amyah S., who said that her ex-boyfriend hit her earlier that day.
Amyah described her ex-boyfriend as a “mid-Eastern male, 6’ tall,
approximately 150 in weight, wearing a gray Nike jumpsuit and
black slip-ons.” Leung broadcasted the description with his pic
radio. Dispatch also provided “a rough basic description.”
Amyah told Leung that her ex-boyfriend “is known to carry
weapons, but . . . did not see any weapons on him today.” Leung
broadcasted the suspect may have a gun.
Leung’s sergeant notified him that “they found a possible
suspect.” Between 20-60 minutes later, Leung drove Amyah to
the suspect, appellant Arshia Chalak, who was at Mason and
Geary, near Union Square. Appellant, wearing a black tracksuit,
was handcuffed and surrounded by multiple police officers.
Leung asked Amyah if the man in the black tracksuit was the
person who hit her. Amyah, sitting in the front passenger seat of
Leung’s patrol vehicle, said that the man was not the one who hit
her.
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Appellant was not released. “[R]ather than being released,
the officers fetched Mr. Chalak’s phone.” Leung called his
sergeant and told him that Amyah did not identify appellant as
the suspect. Officer Gonzalez walked up to Leung’s patrol vehicle
and told Leung the suspect’s date of birth and name. Leung does
not know how Gonzalez learned the suspect’s date of birth or
name.
Apparently not believing Amyah was being truthful about
her identification, Leung asked Amyah to call her ex-boyfriend.
She called twice. Officer Gonzalez told Leung that appellant’s
phone rang twice. An unknown officer took appellant to a police
station for further investigation. Leung drove Amyah back to
Macy’s, where she told him that appellant was the man who hit
her.
On October 23, 2018, appellant was charged by
misdemeanor complaint with domestic battery (Pen. Code, § 243,
subd. (e)(1); count 1). On October 25, 2018, appellant filed a
motion to suppress evidence. On November 21, 2018, the trial
court denied the motion. On December 3, 2018, a jury convicted
appellant of count 1. Appellant timely appealed.
II. DISCUSSION
A. The trial court erred when it denied appellant’s
motion to suppress evidence.
“In reviewing a trial court’s ruling on a motion to suppress,
we defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. [Citation.] And in
determining whether, on the facts so found, the search was
reasonable for purposes of the Fourth Amendment to the United
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States Constitution, we exercise our independent judgment.
[Citation.]” (People v. Simon (2016) 1 Cal. 5th 98, 120.)
A defendant may move to suppress evidence on the ground
that “[t]he search or seizure was unreasonable.” (Pen. Code, §
1538, subd. (a)(1)(A).) A warrantless search or seizure is
presumed to be unreasonable, and the prosecution bears the
burden of demonstrating a legal justification for the search or
seizure. (People v. Williams (1999) 20 Cal. 4th 119, 127.)
“A detention is reasonable under the Fourth Amendment
when the detaining officer can point to specific articulable facts
that, considered in light of the totality of the circumstances,
provide some objective manifestation that the person detained
may be involved in criminal activity.” (People v. Souza (1994) 9
Cal. 4th 224, 231.)
Officer Leung was not the detaining officer. The detaining
officer did not testify at the suppression hearing—and his or her
identity is unknown. Leung testified over objection that the
detained suspect, appellant, matched the description provided by
Amyah, except that appellant was wearing a black rather than a
gray Nike jumpsuit. One could infer from these circumstances
that whoever arrested appellant had heard Officer Leung’s or
dispatch’s description of a suspect. However, nothing in the
record establishes that the detaining officer had any information
linking the person in the description to a crime. Thus, it cannot
be said that the detaining officer possessed specific articulable
facts demonstrating that appellant may have been involved in
criminal activity.
This case is analogous to Lockridge v. Superior Court
(1969) 275 Cal. App. 2d 612 (Lockridge). In Lockridge, Officer
Staub had probable cause to arrest a suspect named Roger. (Id.
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at p. 618.) Staub “contacted the radio dispatcher and asked him
to broadcast a description of [Roger’s] vehicle and request ‘that it
be stopped until the investigation could be completed.’” (Id. at
pp. 618-619.) Within a couple of hours, Roger was arrested in the
vehicle that Staub described to the dispatcher. (Id. at p. 615.)
The identity of the arresting officer and the circumstances of the
arrest were not established at the suppression hearing.
“Unfortunately,” the Court of Appeal noted, “we are confronted
with a total failure of proof by the prosecution as to the
circumstances surrounding Roger’s arrest. The record is devoid
of any evidence as to what information was communicated to the
arresting officer or officers, or, for that matter, who the arresting
officer was.” (Id. at p. 618.) The Court of Appeal concluded that
“[d]ue to the inadequacy of the present record, the arrest of Roger
must be held to have been without probable cause[.]” (Id. at p.
619.) “Under this state of the evidence, we are constrained to
hold that the prosecution has failed to sustain its burden of proof
that Roger’s arrest without a warrant was based on probable
cause[.]” (Ibid.)
Here, as in Lockridge, there was no evidence regarding the
identity of the detaining officer, and no evidence that the
detaining officer had information linking appellant to a crime.
Leung, the only witness at the suppression hearing, was not
present when appellant was detained at gunpoint, nor was he
present when appellant was searched and frisked for weapons.
Respondent argues that the detaining officer’s testimony
was unnecessary, because “[t]he People must present evidence
that there was reasonable suspicion to detain, not that any
particular officers had reasonable suspicion.” Respondent asserts
that Leung’s reasonable suspicion can be imputed to the
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detaining officer through the collective knowledge doctrine. We
find that the doctrine does not stretch that far.
Under the collective knowledge doctrine, we look to the
collective knowledge of all officers involved in the criminal
investigation even though not all of the information obtained by
the investigating officers may have been communicated to the
officer who actually undertakes the constitutionally challenged
action. (United States v. Ramirez (9th Cir. 2007) 473 F.3d 1026,
1032.) “[A] detaining officer who is not personally aware of all
the facts on which a reasonable suspicion might be based may
nevertheless properly detain an individual on the basis of a
direction or information transmitted by police officers who were
personally aware of such facts.” (People v. Soun (1995) 34
Cal. App. 4th 1499, 1521; see United States v. Shareef (10th Cir.
1996) 100 F.3d 1491, 1503 [“The cases in which we have applied
the ‘collective knowledge’ rule all have involved actual
communication to the arresting officer of either facts or a
conclusion constituting probable cause, or an arrest order.”];
United States v. Colon (2d Cir. 2001) 250 F.3d 130, 135 [“The
collective knowledge doctrine was developed in recognition of the
fact that with large police departments and mobile defendants,
an arresting officer might not be aware of all the underlying facts
that provided probable cause or reasonable suspicion, but may
nonetheless act reasonably in relying on information received by
other law enforcement officials.”].)
Two cases illustrate that the collective knowledge doctrine
is not applicable here. First, in United States v. Hensley (1985)
469 U.S. 221, where one law enforcement agency relied on the
work of another law enforcement agency, the Court endorsed the
collective knowledge doctrine. There, an officer with the St.
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Bernard Police Department had a reasonable suspicion that the
defendant was involved in a robbery. (Id. at p. 223.) The
department distributed a “wanted flyer,” which advised other law
enforcement agencies that the defendant was wanted for robbery.
(Ibid.) Officers with the Covington Police Department, who had
received and relied on the flyer, stopped the defendant. (Id. at p.
224.) The Covington officers did not themselves have a
reasonable suspicion that the defendant was involved in a
robbery. (Id. at p. 225.) The Court concluded that the stop was
lawful, because the officers relied on the flyer, and the author of
that flyer had a reasonable suspicion that the defendant was
involved in a robbery. (Id. at pp. 233-236.) “[I]f a flyer or bulletin
has been issued on the basis of articulable facts supporting a
reasonable suspicion that the wanted person has committed an
offense, then reliance on that flyer justifies a stop[.]” (Id. at p.
232, italics added.)
Second, in People v. Ramirez (1997) 59 Cal. App. 4th 1548,
Officer McKnight saw the defendant speeding, and told Sergeant
Ortega via radio that the defendant was speeding. (Id. at p.
1552.) McKnight also told Investigator Dove that the defendant
was “hauling ass.” (Ibid.) Dove told Ortega that the defendant
was getting away at a high speed. (Ibid.) Ortega told Sergeant
Brown to stop the defendant’s car. (Ibid.) Although McKnight is
the one who initially had probable cause to stop the defendant for
speeding, the Court of Appeal concluded that Brown could
lawfully stop the defendant: “Brown also relied on the collective
knowledge of probable cause relayed through official
communications to establish his probable cause.” (Id. at p. 1557.)
Here, there is no evidence in the record that the detaining
officer was given any information about a crime. The flyer in
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Hensley, supra, 469 U.S. 221, advised the detaining officer that
the suspect was wanted for robbery. (Id. at p. 223.) The police
communications in Ramirez, supra, 59 Cal. App. 4th 1548,
indicated that the suspect should be stopped for speeding. (Id. at
pp. 1551-1552.) Here, as in Lockridge, supra, 275 Cal. App. 2d
612, the prosecution failed to establish that the detaining officer
had any information about criminal activity—there was no
evidence that the detaining officer knew domestic violence was
suspected. The prosecution failed to elicit from Leung that he
conveyed to the detaining officer that he had a reasonable
suspicion or probable cause to believe that the person described
was involved in criminal activity.
“As with all warrantless intrusions, the burden lies with
the state to justify a detention. To legally detain an individual
because of ‘suspicious circumstances,’ the prosecution must
establish on the record that at the moment of the detention, there
were specific and articulable facts, which reasonably caused the
officer to believe that (1) some activity out of the ordinary had
taken place or was occurring or about to occur; (2) the activity
was related to crime; and (3) the individual under suspicion was
connected to the activity. [Citation.]” (People v. Bower (1979) 24
Cal. 3d 638, 644.) Since the circumstances of appellant’s
detention are unknown, and the prosecution failed to establish
that the detaining officer was provided with reasonable suspicion
of a crime, the prosecution did not meet its burden of proof in
justifying the detention. (Ibid.) The trial court should have
granted the motion to suppress.
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B. Respondent has not established that the error
was harmless beyond a reasonable doubt.
“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” (Chapman v. California
(1967) 386 U.S. 18, 24.) The burden is on Respondent to “prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (Ibid.)
A substantial portion of the investigation linking appellant
to the assault of Amyah occurred as a result of appellant’s
unlawful detention. Amyah did not initially identify appellant as
the person who assaulted her. Amyah did not acknowledge that
appellant was the person who assaulted her until after the
officers used cell phones to link Amyah to appellant. This cell
phone identification procedure took place well after the unlawful
detention. Respondent does not argue that the evidence obtained
during and immediately after the detention was not a “‘fruit of
the poisonous tree’” (Wong Sun v. United States (1963) 371 U.S.
471, 488), nor does Respondent argue that this evidence “did not
contribute to the verdict obtained.” (Chapman v. California,
supra, 386 U.S. at p. 24.) Respondent thus fails “to prove beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (Ibid.) We are therefore
unable to declare a belief that the violation of appellant’s Fourth
Amendment right to be secure against unreasonable seizures was
harmless beyond a reasonable doubt.
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III. DISPOSITION
The judgment is reversed.
HITE, J.
WE CONCUR:
EAST, P.J.
QUINN, J.
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