Metropolitan News-Enterprise


Thursday, January 19, 2006


Page 1


S.C. to Decide Legality of Search Based on Anonymous Tip


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether a warrantless search based on an anonymous tip was reasonable.

The justices, at their weekly conference, granted review of the ruling of the Fourth District Court of Appeal’s Div. One in People v. Rivera, D044103. A divided panel reversed a conviction and two-year prison term for possession of a concealed “dirk or dagger,” saying the officer who found the weapon should not have detained the defendant without independent corroboration of the tip.

The high court voted 6-0 to review the Court of Appeal ruling. Justice Ming Chin was absent and did not participate.

The defendant was arrested in January 2004 by an officer who went to an Oceanside residence in response to an anonymous phone call saying that Rivera, who had an outstanding arrest warrant, was there. The officer testified that he obtained the owner’s consent to search the house, found the defendant sitting in a shed behind it, and arrested him after he identified himself and revealed that he had a knife under his clothing.

After a San Diego Superior Court judge denied his motion to suppress, Rivera entered a negotiated guilty plea, reserving the right to appeal.

Presiding Justice Judith McConnell, in an unpublished opinion filed Oct. 6 for the Court of Appeal, said the search was illegal because the officer failed to verify the existence of a warrant or obtain corroboration for the anonymous tip. Detention based on an uncorroborated anonymous tip violates the Fourteenth Amendment, the jurist said, citing Florida v. J.L. (2000) 529 U.S. 266.

High Court Precedent

The high court held in that case held that a tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was 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 —about six minutes after the tip was reported.

McConnell rejected the prosecution’s contention that in Rivera’s case, the tip was so accurate as to be self-verifying. The presiding justice noted that there was no evidence that the tipster said anything about there being a shed or saying that Rivera was in the shed.

Justice Terry O’Rourke concurred in the opinion, but Justice Gilbert Nares dissented. The dissenting justice argued that Rivera was not detained, but was merely being questioned, prior to his disclosure that he had a knife concealed on his person.

Once he made that disclosure, Nares said, the officers had reasonable cause to detain him for violation of the dirk-or-dagger statute and for their own protection.

In other conference action, the justices let stand a ruling by a divided panel of this district’s Div. Two that a woman who agreed to withdraw a domestic violence complaint to the police as part of a divorce settlement was properly ordered to comply with that agreement.

That panel rejected Monica Beale’s claim that the order by Los Angeles Superior Court Judge Robert A. Schnider violates the free speech guarantees of the state and federal constitutions.

Justice Kathryn Doi Todd, in an unpublished opinion for the Court of Appeal, said that any free speech concerns were outweighed by the state’s compelling interest in enforcing valid agreements. The agreement, she added, did not violate public policy.

The Beales were married in 1995 and separated six years later. Two months after they separated, Monica Beale filed a police report claiming that her husband had abused her.

Eight months later, the parties agreed to settle their differences. Monica Beale agreed “to provide whatever assistance or take whatever action is necessary or appropriate to withdraw the police report made [in] July 2001,” and the agreement was incorporated into a stipulated judgment entered in April 2002.

Cooperation Refused

Monica Beale subsequently refused her ex-husband’s request that she sign a letter to the Los Angeles Police Department withdrawing the report. Schnider, following a hearing, rejected her contention that she had fully complied with the stipulated judgment by calling the police department and requesting that no action be taken on the complaint, which she claimed she had done.

Rejecting Beale’s contention on appeal, Doi Todd emphasized that Beale was not being ordered to comment on whether her prior report was true, or on whether her ex-husband should be prosecuted, nor was she claiming that the order violated her religious beliefs, although she did describe it as morally objectionable.

Presiding Justice Roger Boren concurred, while Justice Judith Ashmann-Gerst dissented, arguing that the agreement violated the state’s “strong public policy of encouraging victims of domestic violence to file police reports.”

No justice of the Supreme Court voted for review in the case, Beale v. Beale, B177640.


Copyright 2006, Metropolitan News Company