Wednesday, May 4, 2005
Divided C.A. Panel Upholds Search Based on 911 Call
By KENNETH OFGANG, Staff Writer/Appellate Courts
An anonymous call to the emergency 911 number was sufficiently corroborated to support a warrantless search of the automobile in which a convicted felon illegally possessed a firearm, the Court of Appeal for this district ruled yesterday.
A divided panel in Div. Two affirmed the conviction of Norman J. Dolly, who was sentenced by Los Angeles Superior Court Judge Jesus Rodriguez to four years in prison for possessing the gun, as a second-strike offender, plus eight months for violating his probation on a charge of possession of marijuana for sale.
Los Angeles police officer Frank Dominguez testified at a suppression hearing that he and his partner responded to a radio call at Ninth Avenue and Jefferson Boulevard in April 2002. The call gave a description of a black male wearing a cast on his left arm sitting “in a possible gray Nissan Maxima.”
When asked if the dispatcher told him how the caller knew that the male black had a gun, Dominguez testified that the caller said he had been threatened with a gun. Dominguez said he arrived at Ninth Avenue and Jefferson Boulevard within two or three minutes after the call and saw the defendant sitting in the driver’s seat of a black Nissan Maxima wearing a cast on his left arm.
The officers then stopped the car, forced the defendant and two others out of the vehicle, and searched it, finding a gun under the front passenger seat. Under questioning by a sheriff’s detective, Dolly admitted the gun was his.
Rodriguez declined to decide whether the anonymous call was a sufficient basis for the search, ruling that the police did not need a warrant because Dolly was on probation and subject to a search condition.
At trial, the tape of the 911 call was played, along with the tape of a second call in which the caller said the Maxima was black.
On appeal, the prosecution conceded that the search condition was an inadequate basis to deny the suppression motion, because intervening appellate decisions had held that a parole or probation condition does not establish the validity of a search unless the officers knew of the condition at the time of the search.
It was argued, however, that the search could be upheld based on the specificity of the information conveyed by the anonymous caller.
The defense argued otherwise, citing Florida v. J.L. (2000) 529 U.S. 266. The justices held there that an anonymous report of a young black male in a plaid shirt, standing at a particular bus stop and carrying a gun, did not justify an investigatory stop of a black male in a plaid shirt — one of three black men standing at the bus stop — wearing a plaid shirt about six minutes after the tip was reported to the officers.
Presiding Justice Roger Boren, writing yesterday for the Court of Appeal, sided with the prosecution, distinguishing J.L. and People v. Saldana (2002) 101 Cal.App.4th 170, which had cited J.L. in suppressing a search based on an informant’s tip.
Boren noted that unlike in the high court case, there was an audio recording of the call leading to Dolly’s arrest, enabling the court to evaluate the anonymous caller’s credibility. On the tape, Boren explained, the caller was obviously upset and said that someone had just pulled a gun on him.
The fact that the call in Dolly’s case was made to a 911 operator and not directly to the police was also a distinguishing feature, the presiding justice said, as was the speed with which the police responded to the call.
On balance, Boren went on to say, “the government’s interest in tracking down the person who was armed with a gun and had threatened the caller with the gun was strong and outweighed the intrusion on the occupants of the car.”
Justice Judith Ashmann-Gerst concurred, but Justice Kathryn Doi Todd dissented, arguing that J.L compelled reversal.
“None of the factors the majority regards as distinguishing this case from J.L., such as the urgency in the caller’s tone of voice or the fact the call was tape recorded, amount to corroboration in any way,” Doi Todd wrote. “It goes without saying that the fact that a gun was actually found in the car is not corroboration for the initial stop and search....The police were able to corroborate only the information anyone on the street could have observed. The Supreme Court has stated in J.L. that more is required; specifically, some means of corroborating either the informant’s credibility or his knowledge of the illegal activity.”
Attorneys on appeal were Sally P. Brajevich, who was appointed by the court to represent the defendant, and Deputy Attorney Generals Marc J. Nolan and Peggie Bradford Tarwater for the prosecution.
The case is People v. Dolly, B169971.
Copyright 2005, Metropolitan News Company