In Re Michael
John D. Spyromilios, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Herbert L. Ashby, Chief Assistant Attorney General, William E. James, Assistant Attorney General, Eric Collins and William D. Stein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.
Michael V., a 17-year-old minor, appeals from an order of the juvenile court finding that he is a person described in
The officers, noting that the fence surrounding the parking lot would prevent such a quick exit, decided to investigate the possibility that the four boys had themselves set off fireworks in violation of a county ordinance.2 The officers stepped out of the patrol car and asked the boys to come over to the vehicle and empty their pockets. This communication took the following form: “Okay, boys, why don‘t you empty your pockets on the car?” Three of the youths began to comply, but appellant took flight. The officers apprehended him, informed him he was under arrest for “resisting” (
Juvenile authorities filed a supplemental petition charging that appellant was a person described by
Preliminarily we observe that the juvenile court was required initially to consider and determine whether appellant was a person described by
We turn first to the issue of the lawfulness of the search. (1) The officers were entitled to detain and question appellant on circumstances constituting less than probable cause. (People v. Mickelson (1963) 59 Cal.2d 448 [30 Cal. Rptr. 18, 380 P.2d 658].) Probable cause was, however, a necessary prerequisite to an arrest or search. Until appellant‘s flight the officers possessed insufficient facts to establish probable cause. The officers had heard a noise, but its origin was impossible to identify with any certainty. They possessed no knowledge that would have directly linked the sound with appellant. The youths’ story that the sound had come from another group which had exited the parking lot over the fence was not so implausible as to provide the additional quantum of suspicion necessary for probable cause.
At the time the officers requested appellant to empty his pockets, therefore, they were not entitled to conduct a search. If that request constituted the initiation of a search, then appellant‘s attempt to flee would not have justified the subsequent arrest and search. (2) First, it is no crime in this state to nonviolently resist the unlawful action of police officers. (
If, on the other hand, the officers’ actions are viewed as something other than the beginning of a search, as for example a permissible solicitation of consent to a search, appellant‘s flight provided ample cause for his arrest and the resulting search. Flight under such circumstances would, in light of the other facts known to the officers, provide probable cause to believe appellant had violated the county fireworks ordinance.
We are, therefore, called upon to characterize the conduct of the officers in requesting to see the contents of appellant‘s pockets. In making this determination we are guided by People v. Stout (1967) 66 Cal.2d 184 [57 Cal. Rptr. 152, 424 P.2d 704]. In that case a police officer investigated a
In Stout we distinguished Gascon v. Superior Court (1959) 169 Cal. App.2d 356 [337 P.2d 201], in which the detained person fled and attempted to throw away incriminating evidence after the officers announced they intended to conduct a search. We stated, “unlike Gascon where the officers announced their intentions to search the defendant, [the officer] in the instant case merely voiced a request to look in the bag. There was no response from the suspects. At that point he started walking toward the passenger‘s side of the car. Conceivably his request could have been met with a refusal upon his reaching his destination. At no time did he inform defendants that he was going to search the bag and we cannot say as a matter of law what was outwardly only a request, even when conjoined with his conduct, amounted to an announced intention to search.” (66 Cal.2d at p. 192.)
We are of the opinion that the reasoning in Stout applies equally to the present case. The question “Okay, boys, why don‘t you empty your pockets on the car?” is no more indicative of an intent to pursue an unlawful search and is no more inherently coercive in impact than the question “Well, you wouldn‘t mind then if I take a look in the bag?” Indeed, the threat of a search appears to have been more imminent in Stout than in the present case, inasmuch as the officer in Stout coupled his communication with a movement in the direction of the object mentioned.
(4) Counsel for the state took the position in the juvenile court that the officers had merely asked the youths to consent to a search and had not announced or threatened an imminent nonconsensual search. The court did not expressly rule on this factual question, but its acceptance of the state‘s argument was implicit in its stated conclusion that the officers had
(5) Appellant‘s second contention is that the court erred in reading the probation report before making its jurisdictional determination. In In re Gladys R. (1970) 1 Cal.3d 855 [83 Cal. Rptr. 671, 464 P.2d 127], we held that
(6) Appellant‘s contention that the court‘s use of the probation report denied him the right to confrontation of witnesses against him is likewise without merit. The judge stated that he found the report of the account appellant had told the probation officer inconsistent with the story to which he had testified in the juvenile proceedings. It appears this comparison was at best an insignificant factor in the court‘s determination of jurisdiction or disposition. But even if it be assumed arguendo that the report of appellant‘s statement had substantially influenced the court, there would be no denial of the right to confrontation. Although the probation officer did not testify, he was present at the hearing and could have been subjected to cross-examination regarding the assertions in his report. Counsel for appellant, however, made no effort to do so. Furthermore, the United States Supreme Court has held in California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], that the right to confrontation is not violated by the admission of a declarant‘s prior out-of-court statements where the declarant testifies at trial and is subject to questioning regarding the prior statements.
(7) Appellant‘s final contention is that the judgment must be reversed
Second, the police report was introduced into evidence not by counsel for the state but by counsel for appellant. In an adult criminal proceeding, the introduction of such evidence by a defendant would bar him from later asserting error stemming from reliance on it. (
(8) The unique provision in
The judgment is affirmed.
McComb, J., Burke, J., and Draper, J.,* concurred.
SULLIVAN, J.
I dissent. I cannot agree that the evidence relied upon to establish the jurisdiction of the juvenile court over appellant was lawfully obtained. On the contrary, the record before us clearly shows that appellant was the subject of an illegal search at the hands of the sheriff‘s officers and that the evidence thereby seized — a bottle of secobarbital pills — should have been excluded as the fruit of such search.
Preliminarily I point out a few facts in addition to those set forth in the majority opinion. When in response to the summoning of the officers the boys approached the patrol car, the officers declared “Okay, boys, why don‘t you empty your pockets on the car?” in an effort to “see if they had any contraband or fireworks.” Three of the youths began to comply, but appellant took flight. Pursued by one of the officers, he leaped over the fence. As he landed on the other side, the officer seized his arm. Appellant wrenched himself free but was soon caught, subdued, and handcuffed. The officers hauled appellant back across the fence, informed him that he was under arrest for “resisting” (
The majority maintain that the officers’ statement was not the beginning of a search but merely a request that the boys reveal the contents of their pockets voluntarily. Thus they conclude that it is not necessary to reach the issue of whether there was an illegal search. I am of the view that the policeman‘s statement did signal the initiation of a search and that therefore the question of the legality of the search must be answered. As will appear, I have concluded that the search was illegal and its fruits should not have been admitted against appellant in this proceeding.
In Bumper v. North Carolina (1968) 391 U.S. 543 [20 L.Ed.2d 797, 88 S.Ct. 1788] police officers gained admittance to a residence when one of them announced that “I have a search warrant to search your house.” (Id. at p. 546 [20 L.Ed.2d at p. 801].) The prosecutor did not rely upon a warrant to justify the search, however, but upon the consent of the resident. The court, in holding the search to be unlawful, stated: “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” (Id. at p. 550 [20 L.Ed.2d at p. 803].) (See also Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 268-269 [57 Cal. Rptr. 623, 425 P.2d 223];1 Lane v. Superior Court (1969) 271 Cal. App.2d 821, 825 [76 Cal. Rptr. 895].)
Here, to be sure, there was no consent on appellant‘s part. However, in determining whether police have made an illegal demand for a search the question of compliance is of little moment. The cases involving “consensual” searches are relevant here in that they indicate under what circumstances a police officer‘s statement must be characterized as an order rather than a request, regardless of whether or not there was ultimate compliance.
The situation in the instant case is similar to that which was found “instinct with coercion” in Bumper even though no threats of official sanction were actually voiced. Here, two uniformed officers, after making inquiries about the sound they had heard, directed the four juveniles to empty the contents of their pockets on the hood of the marked patrol car. This “request,” accompanied by the officers’ implied assertion of authority, was in my view clearly an order rather than merely a solicitation of consent. This order was the beginning of a search, not a request for an intentional and knowing waiver of a constitutional right. (Cf. Johnson v. United States (1948) 333 U.S. 10, 13 [92 L.Ed. 436, 439-440, 68 S.Ct. 367].)
We deemed the officer‘s statement in Stout to be “outwardly only a request” (Stout, supra, at p. 192) to which, presumably, the persons in the car could have answered “Yes, we do mind.” I do not believe, however, that the same could be said for the statement in this case. The shortcoming in the majority‘s reasoning lies in the fact that they fail to appreciate that the issue here is one of coercion, not of punctuation. After preliminary questioning the officer said: “Okay, boys, why don‘t you empty your pockets on the car?” The mere fact that the officer‘s statement was interrogative in form is of little import. The substance and impact of the statement and the situation in which it was made should be controlling in our determination. In fact, there is testimony indicating appellant‘s impression that the police had “told” him to empty his pockets.3 In light of the facts and circumstances in this case, only a strained and very technical interpretation of the officer‘s words could result in a conclusion that this was other than an authoritative demand.
Having determined that the officer‘s statement comprised the beginning
Examining the first argument in support of the search, I advert briefly to the familiar governing rules. As we recently observed in People v. Superior Court (1970) 3 Cal.3d 807, 812-813 [91 Cal. Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559], “It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time [citation] and place [citation] may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape. [Citation.]” A peace officer may without a warrant arrest a person whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. (
Applying these principles to the case at bench, I note that before the officers ordered the youths to empty their pockets,5 they heard coming from the direction of the shopping center what sounded like a firecracker or a small caliber gun. After driving through the center‘s parking lots the officers came upon the group of four youths, who in response to the officers’ inquiries stated that they too had heard the noise. The boys informed the officers that the sound came from another group of individuals 25 yards away, but that the other group had left. The record discloses nothing suspicious or furtive in the conduct of the boys, nor any other facts which would give an ordinarily prudent person reasonable cause to believe that any of the boys had committed a public offense. One officer testified that he nevertheless decided to search the boys because “the sound came from the vicinity of the boys and ... there was nobody else in that vicinity ... which is enclosed by a fence and ... the only exit of these individuals at this time would be over a section that would be a backyard.”
I find these facts, and the officer‘s last-quoted explanation insufficient to establish reasonable cause to believe that any of these boys had committed a public offense. When initially questioned about the sound, the youths gave a comprehensible explanation that on its face was not misleading
In sum, although the boys’ conduct was completely consistent with lawful activity, the Attorney General urges us to hold that there was reasonable cause to arrest appellant because he happened to be with a group of boys in a parking lot in which a single firecracker may have been discharged. I fail to see how this state of facts would lead a man of ordinary care to conscientiously entertain an honest and strong suspicion that appellant had committed a public offense in the presence of the officers. Indeed, contrary to the position now taken before us by the Attorney General, the record clearly shows that the sheriff‘s officers had no intention to arrest the four boys at the time of their initial confrontation but that they were merely detaining the boys for the purpose of questioning. (People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal. Rptr. 18, 380 P.2d 658].)6 We conclude that the attempted search stemming from the officers’ direction
I, therefore, turn to consider the second argument advanced by the Attorney General to uphold the search. The argument runs as follows: The officers had at least sufficient cause to “stop and frisk” appellant; during the course of the officers’ “investigation,” appellant broke and ran; while fleeing, appellant struck the pursuing officer; as a consequence appellant was lawfully arrested for resisting an officer; therefore, the officers had a right to search his pockets.
It is clear that the officers were acting within constitutional limits in questioning the juveniles. (People v. Mickelson, supra, 59 Cal.2d 448, 450.) However, when they ordered the boys to empty out their pockets on the patrol car, they exceeded the constitutional limits of a proper search incident to an investigatory “stop” or detention. These narrow and clearly defined limits permit “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” (Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 909, 88 S.Ct. 1868]; italics added.) (See also People v. Collins (1970) 1 Cal.3d 658, 661-662 [83 Cal. Rptr. 179, 463 P.2d 403].) Such a search “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 [20 L.Ed.2d at p. 911].) Conversely, it is unlawful for a police officer to search the clothes of a subject during an investigation when the motivation for the search is the discovery of evidence and the circumstances do not warrant the belief that the safety of the officer or others is in jeopardy. (Sibron v. New York (1968) 392 U.S. 40, 64-65 [20 L.Ed.2d 917, 935-936, 88 S.Ct. 1889]; Cunha v. Superior Court (1970) 2 Cal.3d 352, 356 [85 Cal. Rptr. 160, 466 P.2d 704]; People v. Collins, supra, 1 Cal.3d at pp. 662-663; Irwin v. Superior Court (1969) 1 Cal.3d 423, 428 [82 Cal. Rptr. 484, 462 P.2d 12].)
The search in this case cannot be justified as a self-protective search for weapons under the holding of Terry v. Ohio, supra, 392 U.S. 1. The facts do not reveal cause for apprehension by the officers for their safety. Rather than pat search the four youths, the officers ordered them to empty their
Calling on a suspect to put his hands into his own pockets and reveal their contents is, in my view, indistinguishable in intrusive effect from the placement of the officer‘s own hand in the suspect‘s pockets and amounts to the unreasonable intrusion denounced by the United States Supreme Court in Sibron. I conclude, therefore, that the initial command that appellant empty his pockets constituted an unlawful search of his person.
I turn now to the question whether the evidence seized — the bottle of secobarbital pills — should have been excluded as the fruit or direct result of the illegal search.8
Appellant argues that his flight, his subsequent arrest for resisting an officer, and the ensuing discovery of the secobarbital in his pockets proceeded directly from the initial illegal search, and that the bottle of pills “has been come at by exploitation of that illegality.” A similar factual situation is found in Badillo v. Superior Court, supra, 46 Cal.2d 269. There, police illegally entered the defendant‘s house to search for narcotics. Defendant ran out the front door and threw a package of heroin on the ground. In holding this evidence to be inadmissible, we stated a rule that, although preceding the rule of Wong Sun, coincides with the holding of that case: “It clearly appears ... that defendant‘s flight out the front door and attempted disposal of the evidence was the direct result of Officer Getchell‘s illegal entry, and accordingly, the evidence was obtained in violation of constitutional guarantees. [Citations.]” (Id. at p. 273; italics added.)
In the case at bench, appellant‘s flight from the officers, his arrest and search, and the discovery of the pills were likewise “direct results” of the initial illegal search. These events immediately followed the illegal search. Appellant‘s reaction — jumping the fence and wrenching himself from the officer‘s grasp — may have been a rash one, but it was nevertheless the direct and understandable result of the officers’ illegal command to empty his pockets. The fact that several events transpired — albeit in rapid sequence — before the incriminating evidence was eventually found does not defeat the inference that the evidence was “come at by the exploitation” of the illegal search.9
I arrive at these final conclusions: That the officers’ direction that appellant empty his pockets constituted an attempt to conduct an unlawful search of his person; that appellant‘s ensuing flight, resistance, capture, arrest and search were the direct result of this initial illegality; that the restricted dangerous drugs seized by the officers in the course of the final arrest and search were the fruit of such primary illegality and were, therefore, not admissible in evidence at the hearing; and that absent other sufficient evidence, there is no substantial evidence to support the finding that appellant violated
Accordingly, I would reverse the order appealed from.
Wright, C.J., and Tobriner, J., concurred.
Notes
“Q. [Counsel for appellant]: Did you put your hands in your pockets when the police were detaining you and the three other boys?
“A. [Appellant]: Yes I did. When they told us to — they walked up to me and they asked me if — what I had in my pockets and then they said empty everything out of my pockets and put it on the car.” (Italics added.)
At the hearing, the arresting officer testified:
“[Counsel for the minor]: Were you detaining the boys at that time?
“[Arresting officer]: Yes, sir.
“.... .... .... .... .... . .
“Q. Would you say that the boys were actually being restrained at that time?
“A. What do you mean by restrained?
“Q. Is that what you mean by detention, by detaining?
“A. No. A detention is when we‘re investigating if in fact a crime had taken place, getting information.
“Q. What does the word ‘restrained’ mean to you?
“A. Restrained means restraining a man where he does not have freedom of his limbs.
“Q. What does the word ‘detain’ mean to you?
“A. Detained means detained for a small period of time, to investigate.
“.... .... .... .... .... . .
“Q. When the boys came over to the car to empty their pockets on the hood, would you say that they had submitted to your custody?
“A. Yes, sir.
“Q. In other words, you considered them to be in your custody at that moment?
“A. In custody?
“Q. In your custody. I believe you just stated that you felt when they came over to the car to empty their pockets on the hood that they had submitted to your custody.
“A. They were detained by us. They were in detention.”